
Class J K-15 I- 
Book. ,z. JUJl 



Copyright^ . 



1^04- 



COPYRIGHT DEPOSIT. 



SCHOOL CIVICS 



AN OUTLINE STUDY OF THE ORIGIN 
AND DEVELOPMENT OF GOVERNMENT 
AND THE DEVELOPMENT OF POLITICAL 
INSTITUTIONS IN THE UNITED STATES 



BY 

FRANK DAVID BOYNTON 

Superintendent of Schools, Ithaca, New York 



GINN & COMPANY 

BOSTON ' NEW YORK • CHICAGO • LONDON 






22 J 904 

CI.ASS '^ KXc. No. 

G3J33 

' COPY B 



Copyright, 1904, by 
FRANK DAVID BOYNTON 



ALL RIGHTS RESERVED 



OH- 21SCM 



Typography by The Stanhope Press, Boston, Mass. 



Presswork by The Athenaeum Press, Cambridge, Mass. 



PREFACE 



In i 90 i a Syllabus of Civics for the use of grammar 
schools was published. The Syllabus was followed by the 
publication of a Library Manual of Civics. This larger 
book is an expansion of the Syllabus as outlined in the 
Library Manual. The chapters that occur in it, together 
with the library references and questions given at the end 
of each chapter, are practically the same as may be found 
in the Manual. For two years the Manual has been 
in the hands of large classes studying civics. A special 
edition of the present work was published in pamphlet form 
and used in the classroom during the school year 1903-4. 

The book tells the story of our government in such a man- 
ner as to make the difficult subject of civics possible of com- 
prehension to the average grammar or high school pupil. 
The story is told as it was made, historically. It begins back 
far enough to show clearly the relations of our government 
to earlier forms, and follows the various steps through which 
our government has passed in its evolution from a few 
disassociated bands of colonists to its present dignity as 
the world's greatest republic. 

The text of the book is intended to be sufficiently full to 
prepare pupils for college entrance, regents' and teachers' 
examinations. In the larger schools where libraries are ac- 
cessible it is recommended that pupils be required to look up 



iv PREFACE 

some of the library references on each chapter, in order that 
they may become acquainted with various views and thus 
gain a broader knowledge than any one book can give. The 
questions have been selected with care from all available 
sources and should be studied. The bibliography is merely 
suggestive. It might be much larger, but it will be found a 
reliable guide to the pupil and to schools desiring to enrich 
their libraries upon this subject. 

The chapter on Politics and Political Parties, while some- 
what of a departure in a text-book on civics, is fully war- 
ranted by the growing importance of these matters in the 
management of our government. Many questions arise in 
a civics class that should be freely debated by members of 
the class formed into opposing sides. 

In the preparation of the book the author has received 
much valuable help from teachers of civics in different parts 
of the country, and from lawyers and statesmen to whom he 
has frequently applied for specific information. Special ac- 
knowledgments are due to Mr. D. C. Knowlton, A.B., for 
the excellent service he has rendered, and to Mrs. Gertrude 
Shorb-Martin, Ph.D., who has been especially efficient in 
composition and proof-reading. 

Ithaca, N.Y.j 1904. 



CONTENTS 



CHAPTER 



II. 
III. 



IV. 
V. 

VI. 

VII. 

VIII. 
IX. 

X. 
XI. 

XII. 

XIII. 
XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 



Bibliography 

Government: Its Origin, Its Necessity, Its 
Object, Its Functions 

Forms of Government 

Colonial Government in America: Its 
Origin and Development to the Con- 
stitution 

Attempts at Union (1643-1777) 

The Articles of Confederation (1781- 

1789) 

The Constitution: Its Formation and 
Adoption 

The Constitution: Its Origin and Nature . 

Legislative Department: Its Organization, 

Legislative Department: Its Powers and 
Limitations 

Legislative Department: Its Working . . 

Executive Department: President and 
Vice-President 

Executive Department: President's Assist- 
ants 

Judicial Department: Federal Courts 

The States: In Their Relations to the 
Constitution 

The Bill of Rights : The Individual in His 
Relations to the Constitution . . . 

Miscellaneous Provisions 

The Unwritten Constitution ...... 

State Governments 

Local Government 

Municipal Government 

American Politics and Political Parties, 

International Law 

Municipal Law 

Appendix: Articles of Confederation; Con- 
stitution of the United States . . . 

Index 

1 



PAGE 
3 

7 
2 3 



40 

54 

65 

72 
88 
97 

119 
158 

178 



202 
219 

231 

243 
249 

255 
264 
288 
293 
309 
326 

344 



XXXlll 



BIBLIOGRAPHY 



Adams, H. C. The Science of Finance. New York. 1898. 

Alton, Edmund. Among the Law-Makers. New York. 1896. (Cited as 

Alton.) 
Ashley, R. L. The American Federal State: a text-book in civics for high 

schools and colleges. New York. 1903. (Cited as Ashley.) 
Baker, M. N. Municipal Engineering and Sanitation. Citizens Library. 

New York and London. 1902. 
Bancroft, George. History of the United States of America from the Discovery 

of the Continent. Last revision by author. 6 v. New York. 1892. 

(Cited as Bancroft.) 
Bryce, James. American Commonwealth. 2 v. New York. 1896. (Cited 

as Bryce.) 
Channing, Edward. Student's History of the United States. New edition. 

New York and London. 1899. (Cited as Channing.) 
Cooley, T. M. Constitutional Limitations. Boston. 1878. 
Cooley, T. M. Principles of Constitutional Law. Boston. 189 1. 
Curtis, George Ticknor. Constitutional History of the United States from 

their Declaration of Independence to the Close of their Civil War. 2 v. 

New York. 1896-1897. (Cited as Curtis.) 
Dallinger, F. W. N omination for Elective Office. Cambridge. 1897. 
Dawes, Anna Laurens. How we are governed: an Explanation of the Con- 
stitution and Government of the United States: a Book for Young People. 

Boston and London. 1900. (Cited as Dawes.) 
Dole, Charles F. American Citizen. Boston. 1896. (Cited as Dole.) 
Fiske, John. American Political Ideas viewed from the Standpoint of Uni- 
versal History. New York. 1885. 
Fiske, John. Civil Government in the United States considered with some 

Reference to its Origin. Boston, New York, Chicago. 1903. (Cited 

as Fiske.) 
Fiske, John. Critical Period of American History: 1783-1789. Boston and 

New York. 1896. 

3 



4 CIVIL GOVERNMENT 

Fiske, John. Old Virginia and her Neighbours. 2 v. Boston and New 

York. 1897. 
Goodnow, F. J. Municipal Problems. New York. 1897. 
Hadley, A. J. Railroad Transportation : its history and its laws. New 

York. 1895. 
Hamilton (Alexander), Jay (John), Madison (James), and others. Feder- 
alist and other Constitutional Papers. Edited by E. H. Scott. Chicago. 

1894. (Cited as Federalist.) 
Harrison, Benjamin. This Country of Ours. New York. 1901. (Cited 

as Harrison.) 
Hart, Albert Bushnell. Formation of the Union : 1750-1829. 6th ed. Epochs 

of American History Series. New York and London. 1896. (Cited 

as Hart.) 
Hinsdale, B. A. American Government: National and State. New 

and revised edition. Chicago and New York. 1895. (Cited as 

Hinsdale.) 
Jenks, J. W. The Trust Problem. New York. 1900. 
Johnston, Alexander. History of American Politics. 3d ed. Revised by 

William M. Sloane. New York. 1892. (Cited as Johnston.) 
Lalor, John J. Cyclopcedia of Political Science, Political Economy, and of 

the Political History of the United States, by the best American and Euro- 
pean Writers. 3 v. New York. 1893. (Cited as Lalor.) 
Lawrence, T. J. Principles of International Law. 3rd edition, revised. 

Boston. 1900. 
McConachie, L. G. Congressional Committees. New York. 1898. 
MacDonald, Wm. Select Documents Illustrative of American History. 3 v. 

New York. 1898-1903. 
McMaster, John Bach. History of the People of the United States from the 

Revolution to the Civil War. 5 v. New York. 1888-1900. (Cited 

as McMaster.) 
Macy, Jesse. First Lessons in Civil Government. Boston. 1896. (Cited 

as Macy, First Lessons.) 
Macy, Jesse. Our Government : how it grew, what it does, and how it does it. 

Revised ed. Boston. 1901. (Cited as Macy.) 
Madison, James. Journal of the Federal Convention. Edited by E. H. 

Scott. Chicago. 1893. 
Montgomery, D. H. Student's American History. Boston and London. 

1902. (Cited as Montgomery.) 
Oberholtzer, E. P. The Referendum in America. New York. 1900. 



BIBLIOGRAPHY 5 

Official Congressional Directory for the Use of the United States Con- 
gress. Washington. 1903. 

Remsen, Daniel S. Primary Elections. New York. 1894. 

Roberts, Ellis H. New York: the Planting and the Growth of the Empire 
State. 2 v. American Commonwealth Series. Boston and New York, 
1899. (Cited as Roberts.) 

Robinson, W. C. Elementary Law. Boston. 1882. 

Roosevelt, Theodore. Gouverneur Morris. American Statesmen Series. 
Boston and New York. 1899. 

Roosevelt, Theodore. American Ideals and other Essays, Social and Politi- 
cal. New York and London. 1902. 

Schouler, James. Constitutional Studies. New York. 1897. 

Schouler, James, History of the United States of America under the Consti- 
tution. 6 v. New York. 1880-1899. (Cited as Schouler.) 

Stanwood, Edward. History of the Presidency. Boston. 1898. 

Stimson, F. J. Labor in its Relation to Law. New York. 1895. 

Stubbs, William. Constitutional History of England in its Origin and De- 
velopment. 4th ed. 3 v. Oxford. 1896. 

Taswell-Langmead, Thomas Pitt. English Constitutional History from the 
Teutonic Conquest to the Present Time. 3d ed. Revised by C. H. E. 
Carmichael. London and Boston. 1886. (Cited as Taswell-Lang- 
mead.) 

Taussig, F. W. Tariff History in the United States. New York. 1888. 

Thwaites, Reuben Gold. Colonies: 1492-1J50. Epochs of American His- 
tory Series. 9th ed. New York and London. 1896. (Cited as 
Thwaites.) 

Townsend, Calvin. Compendium of Commercial Law analytically and topi- 
cally arranged, with Copious Citations, etc. New York, Cincinnati, 
Chicago. 187 1. (Cited as Townsend.) 

Tyler, Moses Coit. Patrick Henry. American Statesmen Series. Boston 
and New York. 1899. 

Walker, F. A. Making of the Nation. New York. 1895. 

White, H. Money and Banking. Boston. 1896. 

Wilcox, Delos F. The Study of the City Government. New York. 1897. 

Wilson, Woodrow. Congressional Government: a Study in American Politics. 
15th ed. Boston and New York. 1900. (Cited as Wilson, Congres- 
sional Government?) 

Wilson, Woodrow. The State: Elements of Historical and Practical Politics: 
a Sketch of Institutional History and Administration. Boston. 1889. 
(Cited as Wilson.) 



6 CIVIL GOVERNMENT 

Woodburn, J. A. The American Republic and its government: an analysis 
of the government of the United States with a consideration of its funda- 
mental principles and of its relations to the states and territories. New 
York and London. 1903. 

Woolsey, Theodore D wight. Introduction to the Study of International Law 
designed as an Aid in Teaching and in Historical Studies. 6th ed. 
Revised by Theodore Salisbury Woolsey. New York. 1891. (Cited 
as Woolsey.) 

Wright, Carroll D. Industrial Evolution of the United States. New York. 
1895. 

Zueblin, Charles. American Municipal Progress: chapters in municipal 
sociology. Citizens Library. New York and London. 1903. 



CIVIL GOVERNMENT 



CHAPTER I 

GOVERNMENT: ITS ORIGIN, ITS NECESSITY, ITS OBJECT, 
ITS FUNCTIONS 

1. Definition. If you look into the dictionary for a 
definition of civics, you will find that it means "the science of 
civil government; the principles of government in their ap- 
plication to society." Further you will find that civil means 
"pertaining to the state in general." But after you have 
studied these definitions will you be much the wiser? So- 
ciety, the state, government, are all themselves terms requir- 
ing explanation before the student can boast much enlight- 
enment. 

2. Origin of the State: Primitive Man already Social. 
First of all, then, what is society? Aristotle, the greatest of 
the Greek philosophers, declared that man is naturally a 
political animal. Whether he is so by nature or whether, 
as a later philosopher, Hobbes, maintained, his natural state 
is a state of war in which every man's hand is against his 
fellow, certain it is that though we follow him back through 
the dimmest vistas of history into prehistoric times, we find 
him always in association with his kind, never solitary. If 
he is not by nature social, certainly he had already begun 
to grow so even in hoariest antiquity. We find him always 
a member of some sort of society, however rude and poorly 

7 



8 CIVIL GOVERNMENT 

organized, i.e., we find him always associated with other 
persons for their mutual advantage or for the furtherance of 
some common purpose. It should not be understood, how- 
ever, that this purpose is always definitely present to the 
minds of the members of the society. As a matter of fact, 
civil society is not a voluntary association, like a debating 
club for instance; on the contrary, the members are simply 
born into it, and have no choice as to whether or not they 
will be members. 

3. Primitive Societies : Our Knowledge Imperfect. Doubt- 
less in the earliest and most primitive societies this common 
object was to secure a more abundant supply of food. Man, 
in some respects the weakest and most defenceless of the 
larger animals, must have learned yery early in the course of 
his evolution that by association with his fellows he could 
cope much more easily with the lower animals upon which he 
was dependent for subsistence. Just how these rude, almost 
wholly unorganized hunting bands developed into the com- 
plex organizations now known as states is one of the prob- 
lems about which science, in the absence of a complete array 
of facts, is obliged as yet to theorize in part. In dealing 
with the question of the origin of the state we must be con- 
tent if science evolves for us a consistent and reasonable 
theory. 

4. Definition of State. But first let us guard against a 
possible misapprehension. Here in the United States we 
use the term " state " in a local and peculiar sense as applying 
to any one of the forty-five divisions of the nation, each of 
which, while regulating its own local affairs and possessing 
a considerable degree of political independence, is still sub- 
ject to the federal constitution. The word " state " has, how- 



GOVERNMENT: ITS ORIGIN 9 

ever, a wider application. It is used primarily to designate 
any community having an independent existence and pos- 
sessing a permanent administrative machinery called a gov- 
ernment. The extent of the power to be exercised through 
this government and the exact method of employing it are 
matters fixed by rules that have been established by custom 
or have been committed to writing. Germany, France, and 
the United States are examples of states. 

5. Original Law-Giver Theory. Returning then to the 
question as to the origin of the state, we shall find a number 
of theories that have been more or less widely believed at 
different times. Men very early began to wonder how they 
came to have laws and governments, and we find among 
the traditions of all the great races stories about some re- 
markable law-giver, who organized their state and originated 
the laws under which his people were to live. Thus, for the 
Athenians Solon, for the Spartans Lycurgus, for the Romans 
Numa, played this role of original law-giver. 

6. Divine Right Theory. A second and later theory, sup- 
posed by those who held it to be much more reasonable 
than the belief in an original law-giver, might be called the 
" divine right theory," the theory of the divine origin of the 
state. According to this belief, the state was formed by di- 
rect mandate of the Creator; a sort of "Let there be states, 
and there were states." In some way government was 
simply given to man from the beginning. It is this theory 
that lies back of the once widely cherished belief in the divine 
right of kings; for those who saw in the state a divine in- 
stitution were very likely also to see in the particular human 
ruler God's vicegerent, His agent for carrying on this 
institution. 



io CIVIL GOVERNMENT 

7. Contract Theory. More important than either of these 
theories, because at one time more widely believed and 
discussed, is what is known as the " contract" or "social 
compact" theory. This explains the existence of states by 
supposing that at some remote time men deliberately agreed 
together to form a single community and have a politi- 
cal organization. The motive that prompted them to this 
action was the desire to secure a better observance of the 
so-called "law of nature," a law supposed to exist outside 
of and independently of all states, of which all men had 
intuitive knowledge, and whose teaching can perhaps be 
best summed up in the golden rule. 

8. Later Theories Historical. It will be noticed that none 
of these theories relies much for support upon known facts 
of history or upon observations of primitive peoples. They 
are only more or less plausible speculations as to how states 
might have come into existence. It is only in quite modern 
times that men have begun to piece together slowly and 
with much difficulty out of fragmentary bits of history and 
out of a great mass of observations on the customs of primi- 
tive peoples, a theory that can be called in any true sense 
historical. 

9. Force Theory. The beginnings of modern states like 
France or Germany show beyond a doubt that the main in- 
fluence at work in shaping certain portions of Europe into 
states was war. Increase of population; increase of wealth 
or desire therefor; improvement in weapons, tempting men 
to battle with their fellows for the good things that seemed 
attainable in no other way — these things from time to time 
caused the more or less organized hordes to burst their an- 
cient boundaries and seek new homes. Thus some warrior 



GOVERNMENT: ITS ORIGIN n 

9 

renowned for his prowess was hailed as leader, secured a 
following of the bravest of the clan or tribe to which he be- 
longed, and when he with his chosen band got permanent 
control of a definite territory of considerable size, a state 
came into existence. Such phenomena as these, clearly 
traceable in the history of existing states, have sometimes 
been pointed to as indicating the origin of the state; but it 
is clear that in this "force theory" we are dealing, not with 
the beginnings of government, but with political bodies, pos- 
sessing already a considerable degree of organization. The 
terms horde, clan, tribe, which were used in speaking of 
these phenomena, point to some sort of organization already 
existing before the element of force shaped a particular 
people into a France or a Germany. 

10. Kinship Theory. Careful investigation along a great 
variety of lines has tended more and more to show that the 
state has its origin primarily in the bonds of kinship. The 
state is a gradual evolution from the family. This develop- 
ment of political organization out of the family has been 
most carefully traced in the history of what have been called 
the " great central nations" of the world, the Aryan peoples, 
including the peoples of Hindu and Iranian blood in the 
East, and those of Greek, Italian, Celtic, Slavonian, and 
Teutonic blood in the West. Now these peoples either pos- 
sessed originally the patriarchal form of the family, or had 
already advanced to it in the remotest age to which the 
light of history has been able to penetrate, i.e., the fam- 
ily was ruled over by the father, whose word was the only 
law known to his children and dependants, and who, from 
the dignity of his position and his supposed nearness to the 
unseen spirit world, was likewise the medium of communi- 



12 CIVIL GOVERNMENT 

cation with the inhabitants of that world — in other words, 
the priest. 1 As his family increased in number and the ties 
of religion and blood became more remote, it became a 
clan, still bound together by blood relationship, looking to a 
single person as its common ancestor, sharing in a common 
worship, and presided over by the chief kinsman instead of 
the father. It is in the clan, in this union of family groups, 
that we find the beginnings of true political organization. 
As the population increased several clans were formed, and 
these again united to form tribes. One tribe or several of 
them then developed into the state. 

11. Summary. To sum up, then, we may say that later 
investigation has tended to show that in its origin the state 
rests not on the work of some great law-giver, not on the 
direct mandate of the Creator, not on a deliberate contract 
between individuals, not on force, but on kinship. Un- 
questionably most, if not all, of these first-named elements 
have aided in the development of particular states at later 
periods of their history, but they should not be mistaken for 
explanations of the origin of the state. 

12. Government. What is it? In the foregoing pages 
we have several times used the word "government" as if its 
meaning were quite clear; yet how many students could 
formulate a good definition offhand? We are constantly 
feeling all about us the restraints of government. If I own 

1 It should be borne in mind, however, that the patriarchal family is 
not the only form of family known to history. Many evidences point to 
the matriarchal family, in which kinship is traced through the mother only 
and in which the rule belongs to her, as a probably earlier form of family 
organization; and the clan and the tribe, i.e., the elements out of which 
states are built, have grown up among peoples who give no clear evidence 
of ever having known the patriarchal family. 



GOVERNMENT: ITS ORIGIN 13 

property, I must repair at stated intervals to the tax collector 
and pay over to him for the use of the government a certain 
sum proportionate to the value of it; and if I persistently 
refuse to do this, he may sell my property and appropriate 
such portion as the government has asked for. Even when 
I have paid my taxes I am not free to do exactly as I 
choose with my property. I am not allowed to maintain 
there anything that the law considers a public nuisance, i.e., 
anything that endangers health or comfort. I am not free 
to conduct my business in any way I may choose. Certain 
"businesses," like gambling and lotteries, are generally for- 
bidden altogether, because the government considers them 
fraudulent. Certain others, like the liquor business, are 
permitted only on payment to the government of a heavy 
tax called a license, and are even then subject to rigid re- 
strictions. Certain others, like the milk business, are sub- 
ject at any moment to inspection by government officials, 
who are authorized to destroy my goods if they fall short 
of the standard fixed by government. The United States 
government makes and issues great quantities of money, 
paper and coin; yet if I should make a single piece and at- 
tempt to buy anything with it, I should be most severely 
punished. What, then, is this thing "government" that 
hedges me about on every hand, and by what right does it 
say to me "thou shalt" or "thou shalt not"? 

13. Definitions. When we were talking about society and 
the state we found that primitive men, or, to speak more 
accurately, primitive family groups, must very early in the 
course of development have found it advantageous to 
live and work together. Men found themselves better able 
to survive and make progress in society than out of it. In 



14 CIVIL GOVERNMENT 

order, however, that survival and progress may be possible, 
it is necessary that society should secure to its individual 
members as great a degree of justice as conditions permit, 
and the instrument that it uses for this purpose is govern- 
ment. The word is used in two senses: First, government 
may be said to consist of customs, rules, or laws command- 
ing what society, or to use a somewhat narrower and more 
definite term, what the state wishes to have done and for- 
bidding what it does not wish to have done; second, it con- 
sists of the rulers or officers whose business it is to have 
these rules enforced. In other words, government is the 
instrument or agent which the state uses to secure the end 
for which it exists. 

14. Anarchy Impracticable. But what need is there, it 
may be asked, for the restraints and commands imposed by 
government? Could we not get along as well without 
them? In almost every community there are a few persons, 
generally regarded by their neighbors as somewhat visionary, 
who have dreamed a beautiful dream that the day is at 
hand when the lion shall lie down with the lamb and a little 
child shall lead them. One hesitates to call them by the 
somewhat ominous name of anarchists; yet such they are, 
for they believe that the only good government is no govern- 
ment. They do not, however, advocate bomb-throwing as 
a means of putting an end to government; and so, to dis- 
tinguish them from anarchists of the violent type, they are 
called theoretical anarchists. If every individual always did 
exactly the right thing^ at the right time; if he always at- 
tended strictly to his own affairs, never trespassing upon 
the feelings, rights, or property of others; if there were no 
thieves, liars, or otherwise dishonest persons; if all persons 



GOVERNMENT: ITS ORIGIN i5 

were always pure in thought and deed, then every individ- 
ual could indeed obtain his personal rights without the aid 
of government, and the dream of the anarchist would be 
realized. 

15. Government Necessary. Unfortunately this condition 
of affairs has never yet been even approximately reached. 
Even the youngest of us has lived long enough to know that 
there are many persons unwilling to grant to others the 
rights and privileges they demand for themselves. The only 
way to secure from such persons a due consideration for 
the rights of others is through the exercise of some power 
that they at least fear and obey. So long as men are selfish, 
ambitious and greedy, government must remain. If each 
individual is to secure the largest possible personal liberty 
and at the same time grant to every other individual the 
privileges which he himself enjoys, rules or laws must be 
established as the standard of action for all. This, of course, 
does not mean that such rules once -established must re- 
main forever binding upon all who may by birth or other- 
wise become members of the society. Many of the rules by 
which our' Puritan ancestors held themselves rigidly bound 
seem to us now only curious and amusing, as doubtless 
many of ours will seem to future generations. Every gov- 
ernment that is to be in any sense permanent must provide 
for the possibility of orderly change. All that is meant is 
that, no matter how frequently subject to change, there 
must be, at any particular moment, established rules to 
which the actions of all conform. 

16. Government: Its Object. What the true object of 
government is — the ideal it strives to attain — may be 
very easily gathered from the foregoing paragraphs. In the 



16 CIVIL GOVERNMENT 

first place, it should be borne in mind that government in 
the United States, as in other enlightened nations, is not 
intended as a restriction upon personal freedom and should 
not be so understood. Moreover, it rarely so acts excepting 
upon those who interpret personal liberty in such a way as 
to ignore wholly or to infringe seriously upon the rights of 
others, while they maintain similar rights for themselves. 
The object of government is to secure the individual rights 
and liberties of all — to give the widest possible freedom to 
the individual for his self-development, and yet to guard 
that freedom against the competition that kills, and to re- 
duce the antagonism between self-development and social 
development to a minimum. In other words, the ideal 
toward which government strives is to secure to every in- 
dividual of society the largest possible liberty compatible 
with the general welfare. If at any time it becomes obvious 
that the ends of government have become perverted, that it 
no longer strives to promote the general welfare but exists 
only for the private advantage of some individual or of 
some group of individuals, and if all efforts have failed to 
remedy this state of affairs by the means legally provided 
— then the people may justifiably have recourse to revolu- 
tion in order to free themselves from oppression and estab- 
lish or reestablish a just government. 

17. Government and Individual Rights. Now this largest 
possible liberty of the individual can be secured only by 
bringing it about that all other individuals shall pay strict 
regard to what the society in which he lives has recog- 
nized as his rights. It is only in organized society that 
rights can be said to exist at all; and as society grows more 
complex, new distributions and clearer definitions of rights 



GOVERNMENT: ITS ORIGIN 17 

must take place; in other words, as society develops, gov- 
ernment, which originated with the society itself, has con- 
stantly before it the progressive task of securing the greatest 
possible liberty of the individual compatible with the general 
welfare. During the long struggle up from savagery to the 
modern civilized state, this question of the distribution and 
maintenance of individual rights has played, indeed, is still 
playing, a most important role. Individual rights are not 
something fixed and unchangeable from the beginning and 
destined to remain fixed to the end. They are undergoing 
a constant but very gradual change, a change so gradual as 
not to interfere in the least with a very clear understanding 
of what they are at any particular moment. 

18. Classification of Rights: Political Rights. In the 
United States the rights of the individual are divisible into 
two main classes, political and civil. Political rights are 
those which individuals possess in the matter of government. 
The right of the individuals of a state to establish a govern- 
ment has already been referred to (§ 16). This is an extra- 
legal right, i.e., it exists independently of law. In addition 
there is the legal right of certain classes of individuals to 
share in government by voting or by holding office. It 
should be noted that not even in the United States are full 
political rights accorded to all individuals, while under some 
governments political rights of the second kind do not exist 
at all. 

19. Civil Rights. Important as are political rights, it is 
to the much more numerous and diversified class of civil 
rights that those of fundamental importance belong. Civil 
rights are all those that are not political, all those possessed 
by the individual in his ordinary relations with the common- 



18 CIVIL GOVERNMENT 

wealth and with his fellow-citizens. Among them are the 
rights referred to in the declaration of independence as 
"unalienable," because we cannot be justly deprived of them 
except by our own acts: e.g., the right of personal security 
(the right to be safe from injury to life, body, health, or 
reputation); the right of personal liberty (the right to pass 
freely, think freely, speak or write freely, wherever and 
whenever we please, provided we do not infringe upon the 
rights of others); the right of private property (the right to 
enjoy the results of our own labor and saving) ; and the right 
of religious liberty or freedom of conscience (the right to 
worship God as we see fit). Under civil rights also are 
included all rights which belong to individuals in their re- 
lations to other persons, e.g., the rights involved in the re- 
lations between husband and wife, parent and child, em- 
ployer and employed. 

20. Government: Its Functions. The functions per- 
formed by government are not always and everywhere the 
same. They vary in different states and even in the same 
state at different stages of its development. There are, 
however, certain functions which in some form or other all 
civilized states have undertaken. For purposes of study 
these have been divided into two classes: constituent func- 
tions and ministrant functions. 1 By constituent functions 
are meant those "that are necessary to the civic organization 
of society," those which government must perform if the 
state is to continue to exist. To this class belong all those 
functions which have for their object the protection of life, 
liberty and property: such as the keeping of order and the 
furnishing of protection against violence and robbery; the 

1 Wilson, §§ 1232-1235. 



GOVERNMENT: ITS ORIGIN 19 

fixing of the legal relations between husband and wife and 
between parents and children; the regulation of the holding, 
transmission and interchange of property; the determina- 
tion of contract rights; the determination of the political 
duties, privileges, and relations of citizens; and the dealings 
of the state with foreign powers for the purpose of preserving 
it from external danger. By ministrant functions are meant 
those undertaken for the purpose of advancing the interests 
of the state; those which it has been thought convenient or 
expedient to have performed by government, though not 
actually necessary to the existence of the state. Such are, 
for instance: the regulation of trade and industry by such 
means as the coinage of money, the establishment of stand- 
ard weights and measures, and the passing of tariff and 
navigation laws; the regulation of labor; the execution of 
internal improvements; the maintenance of postal and tel- 
egraph systems; the maintenance of waterworks, lighting 
plants, etc.; sanitation; education; care of the poor and 
incapable; care of forests and like matters; and sumptuary 
laws, such as prohibition laws. 

21. Taxing Power. For the performance pf these func- 
tions government must have money or the means of obtain- 
ing it. The men who have left the regular businesses of 
life for a time in order to devote themselves to the perform- 
ance of public work (soldiers, sailors, policemen, judges, 
legislators, clerks, consuls, ministers, governors, etc.) must 
be paid for their services. Moreover, material means must 
be provided for the successful carrying out of the purposes 
of government. Buildings and ships must be constructed, 
munitions of war must be provided, books must be printed, 
and all must be paid for. Governments have, therefore, 



20 CIVIL GOVERNMENT 

been given the right to demand of the citizens the payment 
to the state of a portion of their wealth for the purpose of 
public expenditure, i.e., governments have been given the 
right to levy and collect taxes. 

22. Eminent Domain. Not only, however, has govern- 
ment been given this right of taxation, by which it demands 
wealth equally or proportionately from all citizens; it has 
also been given the right of eminent domain, by which it 
demands the surrender of private property by some citizens 
only, not by all. For instance, it may happen that the good 
of the community, the state, or the nation, may demand 
that a public building (a post-office or a custom-house, a 
navy- yard or a railroad) occupy or pass through a parcel 
of land owned and occupied by an individual. In all such 
cases, where it is clear that the general good will be pro- 
moted, any property of the individual may be appropriated 
by the government. Whenever property is thus appro- 
priated, government recompenses the individual by giving 
him an equivalent in money. 

23. Civics : Its Meaning. We may now return to our defi- 
nition of civics with a fuller comprehension of its mean- 
ing. It is hoped that such terms as society, government and 
the state have gained in meaning for the student; and if they 
are clearly understood, our simple definition of civics as the 
science of government and of the relations of the citizen to 
the government will serve as well as a more elaborate one. 
It is hoped also, that the student has gained some idea of the 
wide scope of the subject on the one hand, and of its intimate 
relation to the affairs of his every -day life on the other. 

24. Civics: Its Nature and Importance. In applying the 
term " civics " to the study upon which we are about to enter, 



GOVERNMENT: ITS ORIGIN 21 

we are in reality laying claim to more than we are entitled 
to. Civics in its true sense is a study, not of the political 
institutions of some one particular nation like the United 
States, but of the fundamental principles underlying all 
government, whenever and wherever they may find applica- 
tion. What we are to study is not civics in this broad sense, 
but civil government in the United States. Nevertheless 
we should not lose sight of the inspiring fact that we are 
concerned with a part of one of the greatest sciences with 
which the human mind has busied itself. At the same 
time our study is of fundamental practical importance not 
only to the male voter but to every man, woman, and child 
in the community; for the happiness and comfort of man- 
kind depend, it is hard to say how largely, upon the action 
of the government under which he lives. Almost his every 
interest is touched and modified by government. Finally, 
almost every one in the United States has a voice, either 
directly or indirectly, in deciding what shall be the ultimate 
form of our government as well as in determining its ob- 
jects and functions. 

Library References. — Ashley, §§ 1-8, 24-29, 33-36; Macy, First Les- 
sons, Chaps. XXI, XXV-XXVI; Dawes, pp. 37-43; Hinsdale, pp. 9-16; 
Wilson, Chaps. I-II, XV-XVI, §§ 1154-1160; Encyclopaedia Britannica, 
Article on Government; Century Dictionary; Lalor, Articles on Government, 
Government Intervention, Taxation. 

QUESTIONS ON THE TEXT 

1. Define civil government. 

2. Is civil society a voluntary association? Give a reason for 
your answer. 

3. Define state. 

4. State two theories of the origin of government. 

5. Define government. Why is government a necessity among 
men? 



22 CIVIL GOVERNMENT 

6. Define anarchy. 

7. Show the necessity of laws, and state two limitations imposed 
by law on individual liberty. 

8. Mention two purposes for which governments are instituted. 
Under what circumstances is revolution justifiable? 

9. Show how public opinion operates as a check against abuses 
of government. How does selfishness and difference of opinion 
make government necessary? 

10. Define right. What are civil rights? Can they be forfeited? 
Give a reason for your answer. 

11. Distinguish between civil rights and political rights. Men- 
tion three civil rights. 

12. What are political rights and how may they be forfeited? Is 
the right to vote at elections a political or civil (natural) right? 

13. Explain and illustrate the meaning of the following state- 
ment: "Where a right exists, a duty always exists with it." 

14. What do you understand by civil liberty? 

15. Define taxation. Explain why the power to levy taxes is 
necessary to government. What possible danger is there in this 
power? By what right does government impose, taxes on the 
governed ? 

16. Upon what principle is the right of taxation based? 

17. Under what circumstances has the government a right to 
take the property of an individual without his consent? what is the 
right called ? 

18. Explain the importance of the right of eminent domain to a 
national government. 

19. Give two reasons why a knowledge of the principles and 
workings of government is necessary for the American citizen. 



CHAPTER II 

FORMS OF GOVERNMENT 

25. Variety of Forms. Even the very young American 
abroad soon becomes aware of the fact, whether he under- 
stands its significance or not, that he is living in the presence 
of political institutions different from those at home. He 
is told that on such and such a day the king or the emperor 
will pass through a certain street and that if he secures such 
and such a position, he may possibly catch a glimpse of him. 
He hears of legislative bodies with strange names and pos- 
sessed of powers very different from those of the congress 
of the United States. He meets with government officials 
whose duties have no counterpart in his home government. 
In his study of history also he can hardly make a beginning 
without coming upon political institutions of which he knows 
nothing by experience. And this all means simply that gov- 
ernment, whose legitimate object is everywhere the same, 
has assumed and is still assuming a great variety of forms 
in order to accomplish its end. 

26. Aristotle's Classification. Since the time of the Greek 
philosopher Aristotle, -governments have generally been 
classified as monarchies (the rule of one), aristocracies (the 
rule of the few), or democracies * (the rule of the many). 

1 This and the term "ochlocracy "are not Aristotle's terms, but it is be- 
lieved that they mil convey his meaning more accurately than would his 
own terms. 

2 3 



24 CIVIL GOVERNMENT 

These Aristotle considered the three standard or legitimate 
forms of government, each of which he believed tended 
constantly to pass into a corresponding perverted form. To 
the monarchy corresponded the perverted form of the tyr- 
anny or despotism; to the aristocracy, the perverted form of 
the oligarchy; to the democracy, the perverted form of the 
ochlocracy (mob rule or anarchy). He believed that states 
passed through a regular cycle of changes. Beginning as 
monarchies, they degenerated into tyrannies, in which the 
ruler used his power, not to further the interests of his sub- 
jects, but to oppress them. When this became unbearable, 
a few men of culture and character gained control of the 
government, and the state became an aristocracy (the rule 
of the best). This in turn degenerated into an oligarchy, 
in which the few who held the power did so not by virtue of 
character, but by virtue of birth or wealth. This oligarchy, 
becoming in turn intolerably oppressive, was overthrown 
by the great body of citizens, and a democracy was instituted, 
which soon degenerated into mob rule. From this the state 
could be rescued only by the power of some great leader, 
who thereupon himself assumed the reins of government, 
making the state again a monarchy and completing the 
cycle. 

27. Inapplicable to Modern State. Aristotle's classifica- 
tion, based upon what he knew of the history of states and 
upon what he saw about him, represented very accurately 
the conditions of his time. Naturally enough it does not fit 
in perfectly with modern conditions. The great modern 
state was a thing undreamed of in Aristotle's philosophy. 
In his time there was no huge British Empire upon whose 
dominions the sun never sets. There was no Czar of all the 



FORMS OF GOVERNMENT 25 

Russias, ruling as absolute monarch over millions of peoples 
differing widely in race and culture and over a territory 
inconceivably vast. There were no great federal states with 
populations bound indissolubly together by the ties of na- 
tional unity, like the German Empire and the United States. 
There was just the ancient city state, made up of a single 
city with a very limited amount of outlying territory, occa- 
sionally possessed of a greater or smaller number of de- 
pendencies over which it exercised no very definite or regular 
control, and now and then acting temporarily as a member 
of a league or loose confederation of similar states. The 
idea of popular government, of democracy in the modern 
sense, was a thought as yet unborn. 

28. Applicable to Earlier Forms. If we approach this 
matter of the classification of states historically, we shall 
find even among very early forms of government some that 
do not seem at first glance to fall into Aristotle's classifica- 
tion. Tribal government is the earliest known form of gov- 
ernment. To be sure, the clan preceded the tribe and may 
be regarded as the germ out of which political organization 
developed; but its government is rather a matter of family 
discipline than of true civil government. In the tribe the 
authority of the head or chief is not merely paternal or 
patriarchal. It may be that, but it is more; it is political. 
Now the fact that each tribe has its paramount chief indi- 
cates clearly where tribal government belongs in Aristotle's 
classification. It is the rule of one, a monarchy. So also 
with patriarchy (the rule of the father), which is sometimes 
given as a separate form of government characteristic of a 
very early period of history. Theocracy, or government 
either directly by God or indirectly through his priests, also 



26 CIVIL GOVERNMENT 

sometimes given as a distinct form of government, may be 
regarded as either a monarchy on the one hand or an aris- 
tocracy or an oligarchy on the other: a monarchy, if God is 
conceived of as ruling directly; an aristocracy, if He rules 
through a select few who seek to promote the true objects of 
the state; an oligarchy, if those objects are perverted. 

29. New Classification Necessary. Thus it is seen that 
these earlier forms of government fall readily enough into 
the old classification. The difficulty arises when we come 
to deal with the modern state. Monarchies still exist, to 
be sure, though in many respects they differ very widely 
from the ancient conception of the monarchy. Aristocracies, 
on the other hand, have disappeared from the modern po- 
litical world. Great Britain, a hundred years ago, might 
still possibly have been pointed to as an example, but with 
the extension of the franchise (the right to vote) during the 
last century, that aristocracy also passed away. Finally, the 
modern republic or democracy is truly modern. It had not 
entered into the mind of the ancient world to conceive such 
an idea. If we hope then to secure a satisfactory classifica- 
tion of modern states, we must make a new one, or at least 
modify the old one to make it fit modern conditions. 

30. What is Sovereignty? Before we attempt to make 
this classification, however, we must make clear, if possible, 
another very important political term, namely, sovereignty. 
We are all familiar, of course, with the word " sovereign " as 
applied to a king or an emperor; and if a foreigner coming to 
our country should ask us, "Who is your sovereign?" prob- 
ably most people would answer unhesitatingly, "We have 
none." Now, as a matter of fact, a sovereign exists in every 
state, no matter what its form; in the United States no less 



FORMS OF GOVERNMENT 27 

than in Russia; only in the one case sovereignty is vested in 
the whole body of adult male citizens, in the other in a 
single individual. Sovereignty may be defined as the su- 
preme power by which a state is governed, whether that 
power be vested in an individual or in a number of individ- 
uals. It requires considerable care in some cases to deter- 
mine exactly where in a state the supreme authority is to be 
found. It is by no means to be taken for granted, because 
a country has a king and calls itself a monarchy, that the 
nominal sovereign is the real one. The British monarch 
exercises less real power in the government of the British 
Empire than does our president in the government of the 
United States. 

31. The Unitary State. States may be classified as (1) 
single or unitary states, (2) confederations, and (3) federa- 
tions or federal states. Let us see if we can make clear the 
differences between these forms. The single or unitary 
state is the simplest form of the state. In it the national 
government exists quite independently of any minor com- 
munities or governments that may exist within it; while 
they, on the other hand, owe to it not only such powers 
as they possess but usually their very existence. They 
are mere subdivisions of the national government. More- 
over, in this form of the state the general government 
operates directly not only upon such minor communities, 
but upon the individual citizens. In short, there is in 
the unitary state no suggestion of a division of sovereignty 
between two governments, one the national government, the 
other a subordinate government such as our state govern- 
ments. France and Great Britain are examples of unitary 
states. 



28 CIVIL GOVERNMENT 

32o The Confederation. As to the confederation, it is 
sometimes questioned whether it can properly be called a 
state at all, since it very rarely if ever possesses the dis- 
tinguishing characteristic of the state, i.e., complete sov- 
ereignty. It is a union of states for certain definite pur- 
poses, particularly the purpose of defence, generally not very 
permanent in its character, in which the separate states 
retain their independence, delegating only certain portions 
of their authority to the union, which acts merely as their 
agent. Its members are not, as in the unitary state, separate 
individuals, nor does it deal directly with the individual. 
It has, as Mr. Bryce says, "no right of taxing him, or judging 
him, or making laws for him;" that power belongs only to 
the states. At the same time, in its relations with other 
states the confederation, so long as it exists, presents much 
the same character as the completely sovereign state and 
must be dealt with by such states in practically the same way. 
Perhaps the most famous confederation of ancient times was 
the Delian Confederacy in Greece. In modern times there 
have been several confederations of German states, resulting 
finally in the formation of the German Empire, which is a 
federation ; while a still more familiar instance is our own gov- 
ernment as it was under the articles of confederation. 

33. The Federal State. Examples of the unitary state 
have existed from very ancient times. Confederations also 
of longer or shorter duration have been formed from time 
to time throughout the course of history. The federal state 
is, on the contrary, a modern political development. In a 
way it may be said to stand between the unitary state and 
the confederation; or perhaps it would be more accurate to 
say that it combines the characteristics of both. Like the 



FORMS OF GOVERNMENT 29 

confederation, it is a union of states; but unlike it, it is 
itself as unquestionably a state as is the most powerful of 
unitary states. The German language indicates very clearly 
the difference between them by calling the confederation a 
Staatenbund, the federal state a Bundesstaat, i.e., to use 
Mr. Fiske's very satisfactory translation, the confederation 
is a band of states, the federation is a banded state. Like the 
unitary state, it has a direct claim to the obedience of the 
individual citizen ; but unlike it, the subordinate communities 
are not mere subdivisions with powers delegated to them 
by the general government. In some spheres of state action 
they are completely independent states. In others, namely, 
in matters pertaining to the common interest, the union 
alone is supreme. Neither the national government nor the 
state government is completely sovereign. Sovereignty is in 
a way divided between them. To give a more formal 
definition, a federation is a state made up by the union of 
other states that have permanently surrendered their right to 
act independently in matters pertaining to the common in- 
terest, while they have in other respects retained their com- 
plete independence. Switzerland, the German Empire and 
the United States are examples of the federal state. 

34. Further Classifications. Whether a state be unitary, 
confederated, or federal, it assumes in modern times one of 
two forms: it is either monarchical or democratic. Monar- 
chies are subject to two further classifications: (1) they are 
either absolute, where the power of the monarch is left un- 
controlled, or limited, where the power of the monarch is 
controlled by law; (2) they are hereditary or elective, accord- 
ing as the office is transmitted to the monarch in the line 
of descent or as he is chosen by the votes of his subjects or 



3° CIVIL GOVERNMENT 

of a part of them. Democracies likewise assume two forms: 
they are (i) pure democracies, in which all the members of 
the community share directly in the government; and (2) 
representative democracies or republics, in which the gov- 
ernment is carried on by a comparatively small number of 
persons, who have been chosen by the whole body of citizens 
to act for them. Of the above classifications that into hered- 
itary and elective monarchies is probably sufficiently clear. 
The others require some further consideration. 

35. Absolute Monarchy. Among the great civilized na- 
tions of to-day the absolute monarchy is rare indeed. Russia 
and Turkey are the only countries in Europe that can be so 
classed; and even Turkey possesses a nominal constitution, 
though, in actual practice, no other law than the will of the 
Sultan is enforced. Where the absolute monarchy does exist, 
however, as in Russia, it differs very materially from the 
absolute monarchy of antiquity. The latter was governed, 
not by what we now call law, but by custom — rules of 
action that had been handed down from time immemorial 
and that bound the monarch as firmly as they did his hum- 
blest subject. The reign of this customary law the monarch 
could not disturb. He could only issue commands covering 
specific cases and affecting particular individuals. Not so 
with the absolute monarch of to-day. He may legislate on 
as large a scale as seems to him good; not issue edicts only, 
covering particular cases, but make general rules of law 
universally applicable. He may do that to-day, and to- 
morrow he may sweep it all away with a word, for his word 
is the only law. In short, the absolute monarch of to-day 
can wield a power that the reign of custom made quite im- 
possible to the ancient monarch. In spite of this, however, 



FORMS OF GOVERNMENT 31 

the ancient monarchy as contrasted with the modern limited 
monarchy was essentially an absolutism. 

36. Limited Monarchy. The modern limited monarchy, 
called also the constitutional monarchy, is one in which the 
monarch is limited in the exercise of his power by the con- 
stitution of the kingdom. The extent of the limitations 
imposed varies greatly in different countries, and the result- 
ing governments shade off from monarchies strongly tinged 
with absolutism to monarchies more democratic in some re- 
spects than the United States. All the advanced governments 
of the world, no matter what their form, have become during 
the last hundred years so deeply penetrated by the demo- 
cratic idea that to-day we are quite justified in saying, as one 
writer does, that monarchies exist only by democratic consent. 

37. Pure Democracy. There remains to be considered 
that form of government toward which all modern govern- 
ments seem to tend in principle, at least, if not in form. 
The pure democracy may be passed over lightly. Assemblies 
in which all the people appear in order to take part in the 
discussion and to vote, become obviously impossible as soon 
as the body politic attains any considerable size. The pure 
democracy as a form of general government, i.e., as a form 
of government for the whole people, has, therefore, passed 
out of existence among civilized nations. As a form of 
local government it still exists in this country in the town 
meeting and will be considered in its place. (§ 377.) 

38. Representative Democracy. The democracy of the 
modern world has assumed another form; it has become the 
representative democracy or the republic. To be sure, this is 
not the only respect in which the ancient democracy differed 
from the modern. To us even the most democratic of 



32 CIVIL GOVERNMENT 

ancient democracies looks much more like an aristocracy or 
an oligarchy. It was always government by a class, and 
that class usually a minority of the whole population. But 
even with its very limited franchise the ancient democracy 
failed, because it either was in the beginning or soon became 
too large and unwieldy to remain a pure democracy, and it 
never hit upon the happy expedient of representation. 

39. Representation. This scheme, by which the political 
powers of a whole class or body of individuals are delegated 
to a single individual who acts as their agent, had been in 
use among the ancestors of the English people even before 
they left their homes in North Germany and Denmark to 
found a new nation in the island country to the west of them; 
nor have their descendants ever relinquished their hold upon 
it. Of course, representation has not always meant repre- 
sentation of the whole body of citizens. Great Britain has 
been during the greater part of her history not a representa- 
tive democracy, i.e., a republic, as she now is (for Great 
Britain in spite of her monarchical form belongs in reality 
among the republics), but a representative aristocracy or 
oligarchy. Nevertheless it is to our English ancestors that we 
owe this great principle of representation. What our Amer- 
ican forefathers did was to apply it not to a class but to a 
whole people — in other words, to democratize it. That, 
however, was a long step in advance. It meant that they 
had founded the first great nation in the world whose govern- 
ment seemed to offer a solution for the old problem of how 
to maintain democratic institutions in a country without 
placing impossible and undesirable restrictions upon its 
growth. Whether the problem has even yet been com- 
pletely solved remains to be seen. 



FORMS OF GOVERNMENT 33 

40. Constitutional Government : Origin. Besides the grow- 
ing tendency toward democracy shown by nearly all mod- 
ern governments, another closely related fact should be 
noted in regard to them. Nearly all modern governments 
either have been from the first or have become constitutional. 
Perhaps, indeed, that is only another way of saying that 
they have become more democratic. By a constitutional 
government is meant, of course, one that exists subject to a 
constitution; but we can perhaps best come at our definition 
of a constitution through a little sketch of its history. While 
the constitutional government is of comparatively modern 
origin, we find the idea that is always involved in a consti- 
tution, namely, the idea of an agreement between ruler and 
people or between the people themselves, existing from very 
early times. The central idea in early Jewish history is the 
covenant (i.e., agreement, contract) between Jehovah and 
his people, while among the Romans the idea of the con- 
tract was adapted to the daily relations of life to a greater 
extent than in any other nation of antiquity. A contract 
may be defined as an agreement entered into by two or 
more persons mutually binding them to do or not to do a 
certain thing. The English people were thoroughly familiar 
with both the Jewish covenant and the Roman contract. 
The idea of agreement contained in them was first applied to 
political affairs in England in the form of the charter, which 
was a written concession from the king to a group of per- 
sons, by which he agreed to confer upon them certain privi- 
leges in return for certain duties which they were to render 
him. Such contracts were used largely for purposes of 
trade and colonization. Sometimes, however, they were 
purely political in character, as, for instance, IVJagna Charta 



34 CIVIL GOVERNMENT 

or the Great Charter reluctantly granted by King John in 
1215, now the foundation of the British constitution; some- 
times partly so, like the charters granted by the English 
government to some of the American colonies, which were 
made to serve to a great extent the purposes of a written con- 
stitution. 

41. The Written Constitution. Long familiarity with the 
Jewish covenant and the use of the contract and charter, 
together with a wide spread belief in the then very popular 
"social compact" theory (§7) of the origin of government, 
turned English attention in the 17 th century very clearly 
toward the written constitution; and several attempts at and 
suggestions for such a constitution were made without per- 
manent result. It was among the American colonists, who 
had brought the idea with them from England, that the 
document often called, perhaps not quite accurately, 1 the 
first written constitution known to history was actually 
wrought out. This document, known as the Fundamental 
Orders of Connecticut, drafted in 1639 by the people of the 
three towns of Windsor, Hartford and Wethersfield, and 
confirmed by Charles II in 1662, created the government 
under which the people of Connecticut lived until that state 
had been for nearly thirty years a member of the union. 

42. The Unwritten Constitution. Not all modern gov- 
ernments, however, are founded on written contracts ; nor 
must it by any means be supposed that because a govern- 
ment lacks such a document, it is, therefore, not a constitu- 
tional government. Constitutions may exist quite as well in 
the form of precedents or laws generally recognized as the 
basis of the government without being committed to writing' 

1 See political Science Quarterly, vol. 14, pp. 251-280. 



FORMS OF GOVERNMENT 35 

and labelled as such. Under such an unwritten constitution 
the people know just as well what to expect of their rulers 
as they do in the United States; the principles on the basis 
of which government is operated are just as thoroughly es- 
tablished. If, then, we define a constitution as the funda- 
mental law which determines the form of government and 
defines and limits its powers, we shall be able to include 
under the definition both the written and the unwritten 
constitution. 

43. Rigid and Flexible Constitutions. We sometimes hear 
also of rigid and flexible constitutions. A constitution that 
has been written out, with each department of government 
carefully described and with every privilege mentioned, is 
likely to be much more difficult to change than one that has 
been expressed in no precise terms and with the general 
outlines vaguely sketched by usage. A constitution of the 
former sort is called rigid; of the latter kind, flexible. 

44. What is the Best Form of Government ? The ques- 
tion is not infrequently asked, "What is the best form of 
government?" It is not a question that can be answered 
dogmatically. There is no absolutely "best" form of gov- 
ernment — best under all conditions. To conclude that re- 
publicanism, because it has been successful in the United 
States, would be an equally desirable form of government 
for the inhabitants of Borneo, let us say, or for the Chinese 
Empire, or for Russia, would be simply absurd. Perhaps 
the most we can say is that the best form of government is 
that through which, under given conditions, the state can 
best accomplish its end, whether that form be monarchical 
or democratic. It is nevertheless true that there are certain 
advantages and certain disadvantages naturally inherent in 



36 CIVIL GOVERNMENT 

each of these forms. The monarchy is naturally a strong 
centralized government, i.e., a government in which great 
power rests in the hands of a single person; the republic, on 
the contrary, tends naturally toward decentralization, i.e., 
division of political power among all the members of the 
body politic. 

45. Centralization. The circumstances under which our 
own government came into existence have tended to fix 
very firmly in American minds the erroneous belief that 
centralization is necessarily an evil. Under some circum- 
stances it may be the best possible form of government. In 
the first place it possesses the sometimes indispensable ad- 
vantage of being strong on the administrative side, i.e., 
of doing promptly and efficiently what it sets out to do. In 
a nation struggling for its existence against hostile nature 
or hostile men or both, this power of rapid and effective exe- 
cution becomes absolutely indispensable. Even highly de- 
centralized governments, such as that of the United States, 
have recognized this by granting to the chief executive ex- 
traordinary powers in time of war or similar emergencies. It 
is sometimes argued also that a better government can be 
obtained through a single man or a few men specially trained 
for their work than through a whole people, the great mass 
of whom are either too ignorant to know what is desirable, 
too indifferent to care, or too wicked to wish for it. The 
specially trained man — the political expert, so to speak — 
or he and his colleagues together, would be able to view 
impartially the whole field of governmental action, and then 
to act, not in the interest of a class or of a bare majority, 
but of the whole people. Such a government, it is argued, 
would free us from the so-called "tyranny of the majority." 



FORMS OF GOVERNMENT 37 

Further, this concentration of power in the hands of one or 
of a few means also concentration of responsibility. Know- 
ing where the power lies, we know also where to lay the 
blame and how to punish the wrong- doer in case that power 
is abused. On the other hand, there exists always in the 
centralized government the possibility that the ruler may fail 
to regard himself simply as a depositary of power to be used 
for the benefit of those who bestowed it, and may seize the 
opportunity to exploit his people in his own interest. More- 
over — it tends to deprive the people of initiative, of self-re- 
liance, of the willingness to undertake things for themselves. 
46. Decentralization. From what has been said about the 
advantages and disadvantages of centralization it is per- 
haps easy enough to infer what are the principal arguments 
for and against decentralization. The verdict of history 
seems to be that for a settled industrial population, whose 
chief business in the world is their own development and the 
development of their country's resources, the decentralized, 
republican form of government is the most satisfactory. It 
furnishes on the whole the surest means of securing the 
interests of the whole people; it leaves individual initiative 
intact; it educates the people to political responsibility. On 
the other hand, it is likely to be administratively weak ; 
there exists always the possibility that through the ignorance 
or indifference of the mass of the people low political ideals 
may prevail; and, since political responsibility is diffused, 
there is danger always of a weakening of the sense of re- 
sponsibility. 

Library References. — Ashley, §§9-13, 16-23; Wilson, §§1161-1181; 
Fiske, pp. 195-201, Chap. VII; Hinsdale, pp. 17-24; Lalor, Articles on 
Monarchy, Democracy, Centralization and Decentralization, etc} 
1 Woodburn, pp. 47-58. 



3 8 CIVIL GOVERNMENT 

QUESTIONS ON THE TEXT 

20. Define three forms of government known in history. Dis- 
tinguish between them, giving an example of each. Mention the 
three most common forms. Give one element of strength and one 
of weakness in each form mentioned. 

21. Define the following forms of government and give an ex- 
ample of each of them: (i) monarchy; (2) aristocracy; (3) oligarchy. 

22. What is the earliest known form of government? 

23. Mention one advantage and one defect of patriarchal gov- 
ernment. What conditions make such a government impossible 
among civilized people at the present time? 

24. What is meant by a sovereign state ? 

25. What is a democracy? a republic? What republic of the 
present time approaches most nearly to a pure democracy? Give 
reasons. 

26. Explain the difference between a pure democracy and a 
republic. Give an example of each. 

27. Which is the older form of government, a republic or a pure 
democracy? Explain. 

28. Distinguish between a limited monarchy and a republic. 
Give an example of each. 

29. Explain the vital importance of the principle of representa- 
tion. 

30. Show that in a democratic form of government the right to 
vote implies the duty to vote. 

31. Show why the education of the masses is important in a 
republic. 

32. Should an elementary education be given in this country 
at the public expense ? Give a reason for your answer. 

33. Distinguish between a despotism and a democracy. Give 
an example of each. 

34. Define charter; constitution. 

35. What is the object of a constitution? Illustrate by citing 
the constitution of the United States. Mention the first written 
constitution in history. 

36. How many kinds of constitutions are there ? 

37. How is a written constitution formed? how is it adopted? 
Explain the advantages to the people of a written constitution over 
an unwritten constitution. Illustrate by reference to the govern- 
ment of the United States. 



FORMS OF GOVERNMENT 39 

38. What form of government do you consider best? Give a 
reason for your answer. 

39. Mention the principal objects of government. Under what 
form of government are these objects best attained? Prove your 
statement. 

40. State the advantages or the disadvantages of a strongly 
centralized government like that of Russia as compared with a 
government like that of the United States. 

41. State two conditions under which a monarchy would be a 
better government than a republic. Give reasons. 

42. Contrast an absolute monarchy with a republic, showing 
advantages and disadvantages of each. 

43. State the advantages and defects of a republican form of 
government. 

44. Is a republic the best form of government under all circum- 
stances? Give reasons. 



CHAPTER III 

COLONIAL GOVERNMENT IN AMERICA: ITS ORIGIN AND 
DEVELOPMENT TO THE CONSTITUTION 

47. Introductory. We are not concerned here with the 
circumstances, however interesting, which prompted the set- 
tlement of so large a portion of America by English colo- 
nists. What does concern us is the character of the various 
governments established by them in those thirteen provinces, 
and the development which those governments underwent 
up to the time when they united to form the nucleus of a 
great federal state. For it should not be supposed that the 
makers of our federal constitution, great as was their work, 
were miraculously creating a government where nothing of 
the kind had existed before. Besides the clearly defined 
body of political principles that seems to be the birthright of 
every community of English descent, and besides their 
knowledge of the English constitution, they could rely upon 
their experience in state and constitution building in their own 
country. They were familiar with the history of the colonial 
governments up to the time of their transition to states, many 
of them had participated in the formation of state constitu- 
tions, and all had had opportunity to observe the working 
of government under state constitutions already adopted. 

48. Charter Government. From the beginning, English 
colonists coming to America brought with them govern- 
ments ready made, as it were, though not all of one type. 
The earliest form of colonial government in this country 
was that known as charter government. Colonization com- 

40 



COLONIAL GOVERNMENT IN AMERICA 4 1 

panies secured from the king a sort of written permit called 
a charter, defining, usually very loosely, the geographical 
boundaries within which settlement was to be made, and 
determining much more clearly the rights and privileges 
of the colonists. These charters outlined a form of gov- 
ernment for the colonies sent out under them, and were 
in reality a sort of imperfect written constitution. The 
governments established under them were democratic in 
their nature, the colonists being given the power of select- 
ing for themselves a governor, a council, and an assembly, 
except in Massachusetts, where after 1691 the governor was 
appointed by the king. The governor and his council were 
not, as might be supposed, charged merely with the execu- 
tion of the laws; they exercised also considerable legislative 
power. Important laws had to be referred to the king for 
his approval. Courts were established by the assembly; 
the judges were appointed by the governor. Except in 
Connecticut and for a time in Massachusetts, appeals from 
these courts were addressed to the home government. 
Of the original thirteen colonies, four — Massachusetts, 
Rhode Island, Connecticut, and Virginia — began as govern- 
ments of this type; but Virginia was soon deprived of her 
charter (1624), so that at the outbreak of the revolution 
only three charter governments existed. 

49. Proprietary Government. Those colonies that did not 
begin their existence as charter colonies were originally 
of the form known as proprietary governments. In the case 
of these colonies the grant of territory was made by the 
king, directly to an individual called a proprietary, who held 
it after much the same fashion as the feudal lords held theirs 
in earlier times. Although by the king's grants the pro- 



42 CIVIL GOVERNMENT 

prietaries were given very extensive powers of government, 
most of them as a matter of fact established governments 
nearly as liberal as those existing in the charter colonies. 
The governor and council, however, as well as the judges, 
instead of being elected, were usually appointed by the 
proprietary ; and important laws had to receive not only his 
sanction but, except in Maryland, that of the king as well. 
Of the eight colonies that began as proprietary governments 
only Maryland and Pennsylvania and Delaware retained 
this form of government throughout the period of colonial 
history. 

50. Royal Province. We find, then, that seven out of 
the thirteen colonies changed their governments during 
colonial times from the charter or proprietary form to some 
other; and this other was the third and last form of English 
colonial government in America — namely, the royal prov- 
ince. In these colonies the government came more directly 
into the hands of the mother country, though even here the 
colonists retained no small measure of independence. The 
king appointed the governor and the governor's council, the 
latter to act not only as an advisory body to the governor 
— a sort of cabinet — but also as the upper house of the co- 
lonial legislature — a senate. The governor had the right 
to veto any law passed by the colonial legislature as well as 
the power of assembling and dissolving that body. In him 
also resided the power of establishing courts and raising 
military forces. Of course, all important laws were sub- 
mitted to the king for final approval or disapproval. All 
this, however, appears much more formidable than it was 
in reality, for the people everywhere retained the right to 
elect representative assemblies; and since these alone had 



COLONIAL GOVERNMENT IN AMERICA 43 

the power to lay taxes, the king's representatives found their 
high-sounding powers somewhat illusory. 

51. Governmental Similarity in the Colonies. Thus, al- 
though there existed, at the outbreak of the revolution, 
three forms of English colonial government in America, the 
thirteen colonies showed a decided similarity in their polit- 
ical arrangements. "The differences related to the charac- 
ter and method of filling the governor's office." Two colo- 
nies selected their own governors, but in all the others that 
official was appointed by the king or the proprietary. Each 
had a legislative assembly chosen by the people, which con- 
trolled the expenditure of money and formed the lower 
house in the colonial legislatures. Each likewise had a 
governor and council, who, except in Pennsylvania and 
Delaware, participated in legislation. The council also acted 
as advisers to the governor and assisted him in the execu- 
tion of the laws. The colonists were entitled everywhere to 
the rights and privileges of English citizens living in England. 
It should be noted also that everywhere the characteristic 
features of the English government were reproduced in the 
new country. 

52. Transition to States. There came a time, however, in 
the history of these thirteen divisions when they ceased to 
be called colonies and became states. The essential charac- 
teristic of a colony is its dependence upon a mother country. 
There came a time, then, when they ceased to have a mother 
country and became independent communities. The events 
that brought into existence the declaration of independence 
need not be recounted. Some changes in the forms of gov- 
ernment were inevitable when the ties were broken that 
bound the colonies to the mother country. As a matter of 



44 CIVIL GOVERNMENT 

fact, the reorganization of the colonial governments antici- 
pated by more than a year the separation of July 4, 1776. 
As early as May, 1775, Massachusetts asked the advice of 
the continental congress on the subject of changing her 
form of government in view of her hostile relations with 
England. Three other colonies followed her lead, and con- 
gress finally advised them to establish a satisfactory form of 
government "during the continuance of the dispute with 
Great Britain." In May, 1776, congress took a more 
decisive step, one that really involved the complete inde- 
pendence of the colonies, by recommending "the respective 
assemblies and conventions of the United Colonies ... to 
adopt such a government as shall in the opinion of the rep- 
resentatives of the people best conduce to the happiness 
and safety of their constituents in particular and of America 
in general." Thus in all the colonies but three the change 
from colony to state was effected before the declaration of 
independence; but in many states the change was regarded 
as provisional, looking forward to a reconciliation with Eng- 
land. The governments adopted were all based on written 
constitutions. In most cases the change from colony to 
state was effected in haste, and in two colonies, Connecticut 
and Rhode Island, a simple resolution of the colonial legisla- 
ture perpetuated the old government, omitting, of course, 
the king. 

53. The Early State Governments. The form of govern- 
ment provided by these state constitutions was very similar 
to that with which the states had been acquainted as colonies. 
No radical changes were effected; for a people does not 
break suddenly with old customs and traditions. The gov- 
ernments were republican in form, though not every male 



COLONIAL GOVERNMENT IN AMERICA 45 

person was allowed to share in them, the right to vote rest- 
ing usually on a property qualification. 1 The old colonial 
legislatures were replaced by state legislatures consisting 
usually of two houses — a lower house apportioned accord- 
ing to population and elected by the qualified voters; an 
upper house equivalent to the old colonial council, in some 
states elected, in others appointed, and possessed of a higher 
property qualification than the other. The oppressive con- 
duct of the king's agents, the royal governor and his council, 
had made the colonists extremely suspicious of a strong 
executive; and with the possible exception of Massachusetts, 
the new states gave the governor little real power. In four 
states there was a plural executive. The old colonial sys- 
tem of courts was maintained with few changes Perhaps 
the most important of those that were made was the pro- 
vision for a final court of appeal in all the states but Georgia, 
and for a change in the method of selecting the judges. In 
some states they were appointed; in others, elected. In 
almost all the states their independence was secured by pro- 
viding for long terms. 

54. Local Government: The Town. In addition to these 
general provincial or colonial governments, however, there 
were in each colony subordinate forms of government. 
These had a greater influence, perhaps, in shaping the po- 
litical character of the American people than had the gov- 
ernments of the larger areas just described. Of these sub- 
ordinate governments the most important in many respects 
was the town or township. This form of local government 
is older than the English nation itself. When the Germanic 
tribes that were destined to grow into that nation left their 

1 Montgomery, p. 146. 



46 CIVIL GOVERNMENT 

homes in North Germany and migrated to England, they 
brought with them this thoroughly democratic form of gov- 
ernment; and not only that, but they called it by the same 
name. Our word " town " is just the old Anglo-Saxon word 
tun in modern dress. Tun meant originally the wall or 
boundary about a village, maintained probably for purposes 
of defence; but later the word came to designate first the 
enclosed space and then the community and the govern- 
ment peculiar to it. All the important business of the tun 
was transacted in a tungemot or tun moot (town meeting) 
made up at first of freemen, later of tenants, as the towns 
often fell into the hands of great nobles. The most impor- 
tant powers of this meeting were to enact "by-laws" (i.e., 
etymologically, town laws) and to try petty offences. The 
chief officers of the tun were the gerefa or reeve and the bydel 
(beadle, or messenger), who were chosen by the people where 
the tun was free, but appointed by the lord where it was 
dependent. The town was also the unit of representation 
for the larger areas of government. 

55. The Parish. Long before the settlement of America 
began, however, England had been divided not into towns 
only but into parishes. The parish generally coincided in 
area with the town, and was at first merely the town organ- 
ized for religious purposes; but when the towns, having for 
the most part fallen into the hands of the great feudal lords, 
had become manors and had lost many of their ancient 
privileges, self-government still survived to a very consider- 
able degree through the parish, which gradually became a 
civil as well as an ecclesiastical division. When the Pilgrims 
came to America in 1620, they left the lords of the manor 
behind them. There was no longer any need for perform- 



COLONIAL GOVERNMENT IN AMERICA 47 

ing civil functions through an ecclesiastical body; and the 
old term " town " or " township " became again the name of 
the local civil division, though the term " parish" was re- 
tained to designate the township as a religious division. 

56. The Town in New England. There were several 
reasons why this very democratic form of local government 
was peculiarly adapted to the needs of the New England 
settlers. As we have already seen (§ 37), pure democracy can 
succeed only in communities of very limited size; and cir- 
cumstances in early New England all combined to keep the 
communities small, or rather to keep them compact. In 
the first place, the settlers, having come to the new world by 
congregations led by their own clergymen and desiring to 
worship in their own churches, naturally settled in some- 
what compact bodies about their churches. Moreover, they 
found the country ill-suited to farming on a large scale after 
the manner of the Virginia plantations, so that a majority of 
the people lived on small farms close together. And finally, 
this compactness afforded needed protection against hostile 
Indians; though fear of the Indians would probably not have 
prevented the scattering of the colonists, had that seemed 
otherwise desirable. 

57. The Town Meeting. In those colonies where town 
government was adopted the town meeting was the real 
core of political life. All the male inhabitants of legal age 
(in some colonies the additional qualification of church mem- 
bership was prescribed) attended the sessions, which were 
in some cases " frequent enough to encroach upon the or- 
dinary business of the community." A chairman called a 
moderator was chosen by the assembled people as presiding 
officer, and the minutes were kept by the town clerk. The 



48 CIVIL GOVERNMENT 

business of the meeting was (i) to levy taxes for the purpose 
of paying the minister's salary, providing for schools, etc.; 
(2) to choose town officers and representatives to the colonial 
legislature; and (3) to make by-laws regulating the construc- 
tion of fences, the laying of boundary lines, and the making 
of roads. The execution of the more important laws was 
intrusted to the officers chosen in this meeting. Probably 
the most important of these were the selectmen, — from 
three to thirteen in number, — the constables, and the town 
clerk. The selectmen were the financiers of the town and 
appointed many of the minor officers, the constable made 
arrests, and the town clerk kept the records.- The judicial 
business was intrusted to one or more justices of the peace. 

58. The County: Its Origin. While the town was so 
important a unit in New England, other forms of local gov- 
ernment were adopted and had a vigorous growth in other 
parts of the thirteen colonies. Probably next in importance 
to the town was the county. Here again is to be seen the 
reappearance of an English form of government in the new 
country. The American county traces its origin back to the 
time when the people of England lived in tribes and were 
governed by chiefs. There came a time when the separate 
tribes were welded together to form an English nation. 
When this change came, the old lines of division were not 
entirely obliterated, the districts formerly occupied by the 
separate tribes being retained as shires (parts cut off) for 
the purpose of caring for the local needs of every part of the 
country. The shire, then, was a much larger division than 
the tun or town, and included within its borders many of 
these smaller units. It was not, however, later in origin, 
but developed side by side with the smaller unit. 



COLONIAL GOVERNMENT IN AMERICA 49 

59. The Shire Becomes the County. As the shire was 
larger than the tun, its government partook more of the 
representative character than did that of the latter. Its 
moot or meeting was not primarily a law-making body, 
but a court for the trial of important cases and a means of 
collecting revenue to fill the national treasury. The shire- 
reeve (sheriff) was the financial agent of the king in the shire, 
besides being intrusted with the care of the criminals. The 
ealdorman ("elder" man) sat in the moot as the interpreter 
of the law for the assembled people. Long before the set- 
tlement of America, however, the shire had become gener- 
ally known as the county, i.e., a district administered by a 
count. This change, along with many others, was due to 
the conquest of England by the Normans. Not only did 
the shire become the county, but the ealdorman was replaced 
by the count, and the shire-moot became the county court. 
The functions of the shire were, however, retained. 

60. Adoption of the County in America. This form of 
government, so materially different from town government, 
was introduced largely in the southern colonies, appearing 
first in Virginia. For a widely scattered population, such as 
that of Virginia soon became, town government would have 
been practically impossible even had the people desired it. 
The followers of Smith had indeed first settled in villages, 
but all the circumstances in early Virginia operated against 
the building up of towns and in favor of the development of 
great plantations. The extreme fertility of the soil, favoring 
as it did the cultivation of great crops of tobacco, tended 
naturally toward the creation of large estates; and this ten- 
dency was facilitated by the rise of slavery. Moreover, nu- 
merous navigable rivers made it possible for most of the 



50 CIVIL GOVERNMENT 

planters to transport their goods directly to England and 
to import their supplies directly from there; so that there 
was no occasion for the building up of market towns. 

61. The Virginia County. Like its prototype in England 
the county in Virginia was primarily an area for the ad- 
ministration of justice, though the county court performed 
some other duties not distinctly judicial in character. This 
court consisted usually of eight justices of the peace, who 
were nominally appointed by the governor. As a matter of 
fact, however, the court really rilled its own vacancies; for it 
was customary for them to nominate the candidates to be 
appointed by the governor. Besides exercising jurisdiction 
over certain civil and criminal actions and over the adminis- 
tration of wills, etc. — i.e., besides its ordinary judicial func- 
tions — the county court had the care also of the bridges 
and highways and assessed the county taxes. The mere 
enumeration of the duties performed by the county court, 
however, gives little idea of the real importance of the county 
in the political life of the colony. It was the unit of repre- 
sentation in the colonial legislature just as the town was 
that unit in New England; and in spite of the absence of a 
democratic assembly like the New England town meeting, 
the county with its county court and its frequently recurring 
"court days," when people of all sorts and conditions came 
together at what we should now call the county seat, to buy 
and sell and to discuss public affairs, was a scarcely less 
influential factor in the development of political life than 
was the New England town meeting. 

62. New England Adopts the County. Thus the town in 
New England and the county in the south were the prin- 
cipal means of caring for the local needs of the. colonists. 



COLONIAL GOVERNMENT IN AMERICA 51 

The people of New England, however, soon found that the 
county provided for many needs that the town could not 
conveniently supply, and so introduced the county to sup- 
plement the town. The town, however, still remained the 
more important unit. This practice of adding the county 
seems to have been universal wherever the town developed, 
but the town was not as a rule adopted by those colonies 
where the county was introduced. Other forms took the 
place of the town — notably the parish, the hundred and 
the manor. 

63. The English Parish. The parish has already been 
alluded to as the form assumed by the English town long 
before the settlement of America. Its affairs were admin- 
istered by vestrymen, who were chosen by the whole body 
of church members, or "rate-payers" as they were called. 
If it is remembered that this body was made up of the same 
persons who had been members of the town meeting, that it 
was, in other words, only the town meeting in its ecclesias- 
tical aspect, it will not be difficult to understand how it 
came about that the parish, after the growth of feudalism 
had turned the town into a manor, should inherit such 
portion of the town's privileges as did not pass into the hands 
of the barons. Thus it happened that the rate-payers in 
the English parish elected not only church officers, but 
surveyors of highways, collectors of taxes and overseers of 
the poor as well; and the parish still retained the right to 
enact by-laws. 

64. The Parish in Virginia. This English parish reap- 
peared in Virginia and in some of the other southern colo- 
nies, but the Virginia parish was not a faithful copy of 
its original. In Virginia taxes were assessed and by-laws 



52 CIVIL GOVERNMENT 

enacted, not by the whole body of church members, but by 
twelve men elected by the people. Thus even in the parish 
government was representative instead of purely democratic. 
After a time even representative government was given up, 
and these twelve vestrymen " obtained the power of filling 
vacancies in their own nurflber," so that the parish became 
oligarchical in its character. This vestry "apportioned the 
parish taxes, appointed the church wardens, presented the 
minister for induction into office, and acted as overseers of 
the poor." The hundred was likewise an old English di- 
vision, as was also the manor; but neither was widely adopted 
in America. 

65. The Mixed System. It was left for the great middle 
colonies of New York and Pennsylvania to develop, by means 
of a combination of both town and county governments, a 
system of local government that has been copied with some 
modifications throughout the United States. By a wise dis- 
tribution of powers between the town and the county there 
was produced "a vigorous town government possessing all 
the necessary means of self-help, cooperating with, and in 
some measure dependent on, a strong county administra- 
tion." The bond of connection was a county commissioner 
or supervisor, who corresponded to the selectman in the 
New England town, and was at the same time a member of 
the legislative body of the county. Under this organization 
the sheriff of the Virginia county and the important officers 
of the New England town were retained with their more 
important duties, but the town meeting lost something of 
the importance that characterized it in New England. 



COLONIAL GOVERNMENT IN AMERICA 53 

Library References. — Ashley, §§40, 42, 46-47, 51-76, 92-93 ; Macy, 
Chaps. I-IV, XIV-XVII ; Fiske, pp. 16-54, 57-80, 146-172 ; Hinsdale, 
Chaps. I-IV; Wilson, §§ 832-856, 995-1005, 1018-1028; Bryce, Vol. I, pp. 
427-433, 589-593; Bancroft, Vol. V, pp. 111-125; Schouler, Vol. II, pp. 208- 
215; McMaster, Vol. Ill, pp. 146-162; Channing, Chaps. II— III, pp. 198-200; 
Montgomery, pp. 145-148; Fiske, American Political Ideas, pp. 17-56; Fiske, 
Old Virginia and Her Neighbors, Vol. II, pp. 30-44; Thwaites, pp. 55-63, 
109-110, 192-193; Hart, pp. 80-82; Tyler, Patrick Henry, Chap. XII; 
Roosevelt, Gouverneur Morris, Chap. Ill; Roberts, Vol. II, pp. 434-436; 
Stubbs, Constitutional History, Vol. I, Chap. V; Taswell-Langmead, pp. 
17-19. 

QUESTIONS ON THE TEXT 

45. Describe two different forms of colonial government that 
prevailed in this country before the revolution. 

46. Explain the origin and trace the development of the town 
as a unit of government; the county. 

47. Describe the development of the town in England. Account 
for the transference of the town to America. 

48. Describe the New England township and show in what 
respect it is (1) a direct government by the people; (2) a unit of 
representation. 

49. (1) State briefly the origin and influence of the town meeting; 
(2) Why did the township become the unit of government in New 
England and the county in Virginia ? (3) What was the parish ? 

50. Show the importance of the town in its relation to the prin- 
ciple of representation. Explain its importance as an aid to the 
maintenance of popular government. 

51. Give historical facts tending to show the sources from which 
our ideas of the county are developed. 

52. Describe the development of the county in England, and 
explain the modifications it has undergone on American soil. 



CHAPTER IV 

ATTEMPTS AT UNION (1643-1777) 

66. Reluctance to Unite. Accustomed as we now are to 

thinking of our nation as a unit and of the union as indis- 
soluble, it is difficult for us to realize the separateness of the 
colonies, or to understand the reluctance with which they 
yielded to the slowly growing sentiment in favor of union. 
Between the formation of the first intercolonial league in 
America and the adoption of our federal constitution there 
elapsed almost a century and a half, the last quarter- century 
of which was crowded with events of such a character as to 
compel recognition of the necessity of union; yet even then 
so imperfectly was the lesson learned that, after seventy 
years more, there was required, in order to teach it com- 
pletely, the costliest and bloodiest civil war known to history. 

67. Influences Favoring Union. There were, of course, 
from the beginning strong forces operating to draw the 
colonists together; had there not been, our present union 
would have remained forever impossible. The colonists 
were nearly all of English descent, and all in a way An- 
glicized; for even where other elements had entered into the 
population, the English type had prevailed. They all spoke 
the English language ; they were protestants in religion, how- 
ever fiercely controversies might rage between sects; they 
all possessed English ideas of political justice and English 
political institutions. Finally, and this was the immediately 
impelling force at each advancing step toward union, they 

54 



ATTEMPTS AT UNION 55 

were all threatened by the same enemy — at one moment 
the Indians, at another the Dutch, at another the French, 
at another the mother country across the sea. 

68. Disintegrating Forces. With such motives as these 
impelling to union, the wonder is that it did not come sooner. 
The fact that it was so long delayed gives some measure 
of the forces tending in the opposite direction. It may fairly 
be said that, until the revolution was actually upon them, 
the colonies were more distinctly conscious of their separate - 
ness than of their unity, and, on the whole, more desirous 
of maintaining it. From the beginning every colony had been 
politically separate from every other; and if, as happened 
once or twice, a league was formed for the accomplishment 
of a specific purpose, the colonies concerned took good care 
to make it clear that they meant to surrender no part of 
their independence. In spite of their physical nearness 
there was no more political connection between New York 
and Virginia than between New York and the British pos- 
sessions in India. Both were more or less directly subject 
to the home government, and that was all. Even geograph- 
ically the colonies were less closely united than they seem to 
us now. Had they been planted along some great interior 
waterway like the Mississippi, commercial necessities would 
soon have forced them into some sort of union ; but scattered 
as they were along the coast, each possessing its own coast 
line, its own harbors, and its own interior waterways, it 
was possible for them to remain for an indefinite period 
commercially independent of each other. Moreover, com- 
munication between the colonies was by no means easy. In 
the stormy winter the voyage along the coast was dangerous 
and difficult; while the land journey, lying often through 



56 CIVIL GOVERNMENT 

pathless wildernesses, was even slower and more perilous. 
To travel from Charleston to Boston by land required as 
much time and involved no fewer hardships than did a voy- 
age across the ocean. Industrial differences, too, kept the 
colonies apart. Here shipping was the chief industry; there 
wealth consisted principally of slaves; elsewhere the popula- 
tion was made up mostly of small farmers. And finally, it 
should be remembered, population was in many regions so 
sparse and governmental action so little felt either in the 
way of assistance or restraint, that many of the colonists 
hesitated to subject themselves to a new government, lest 
they should lose their cherished independence. Of local 
pride and patriotism there was enough and to spare; but it 
was only the stress of the approaching revolution that 
quickened into life the feeling of national unity. Until then, 
as has been said, "with the exception of the larger spirits, 
Carolinians were content to be Carolinians, Virginians to be 
Virginians, New Yorkers to be New Yorkers." 

69. The New England Confederacy. In view of these 
disintegrating tendencies, all the pre- revolutionary attempts 
at union among the colonies are important. They are the 
means by which was slowly formed the habit of acting to- 
gether, without which the revolution must have ended in 
failure, and which was destined to form a stable basis for the 
new-born government. The first intercolonial union ever 
formed in America was a league entered into in 1643 by the 
colonies of Plymouth, New Haven, Connecticut, and Massa- 
chusetts, and known as the United Colonies of New Eng- 
land or the New England Confederacy. Later New Hamp- 
shire became a member of the union, but the two other New 
England colonies, Rhode Island and Maine, which we might 



ATTEMPTS AT UNION 57 

have expected to find included also, were left out on religious 
grounds. The league grew out of the necessities of the time. 
Surrounded on all hands by enemies, with the energetic 
Frenchman grasping eagerly at coveted trading stations, 
with the sturdy Dutchman pushing steadily closer to their 
borders, with the wily Indian watching unremittingly for 
any sign of weakness, the New England colonies were 
forced to seek strength in union; particularly since the Eng- 
lish government was engaged in a struggle at home too 
desperate to admit of its affording any protection to these 
distant colonies. 

70. The Confederacy a Step Toward Union. In its na- 
ture the confederation was of the loosest sort, and Massa- 
chusetts refused on occasion to be bound by the agree- 
ment entered into on the formation of the league; but in 
spite of this the union lasted more than forty years, going 
to pieces finally in 1684, the same year in which Massachu- 
setts lost her first charter. There can be no question that 
the confederation was of the greatest assistance to the col- 
onies in the accomplishment of the ends for which it had 
been directly formed; but it could hardly have existed 
so long without producing, as its indirect effect, a completer 
sense of community of interests in the colonies concerned. 

71. Albany Congress. Even before the dissolution of the 
New England confederacy, there had been suggested a 
plan for the union of all the colonies on a military basis. 
This suggestion had been made in 1660 by a royal commis- 
sion known as the council for foreign plantations, but 
nothing came of it. After the dissolution of the New Eng- 
land confederacy and during the long period of the wars 
with the French, combined action on the part of the colonies 



58 CIVIL GOVERNMENT 

was frequently necessary, a number of conferences occurred, 
and a series of similar suggestions for union was made, the 
plans emanating now from the colonists, now from the home 
government, but none of them resulting in any action. Fi- 
nally, in 1754, occurred the conference or convention known 
as the Albany congress, called at the suggestion of the home 
government for the purpose, among other things, of devising 
some plan for concerted action on the part of the colonies in 
the event of another war with France. Seven of the thirteen 
colonies — New York, Pennsylvania, Maryland, New Hamp- 
shire, Massachusetts, Rhode Island, and Connecticut — 
sent representatives. The convention appointed a committee 
to draw up a plan of union and accepted the plan presented, 
which was principally the work of Franklin. 

72. Franklin's Plan. According to this plan the affairs 
of the united colonies were to be administered by a "presi- 
dent-general" and a " grand council," the latter to be 
elected by the colonial assemblies. The president-general 
was to be appointed by the crown and was to possess the 
veto power over the acts of the council. The grand council 
was to consist of forty-eight representatives, apportioned 
among the colonies according to "the proportion of money 
arising out of each colony to the general treasury;" but no 
colony was to have less than two representatives nor more 
than seven. It was to be the duty of the council to enact 
ordinances of general interest, to promote the general wel- 
fare, to appoint civil officers with the consent of the president- 
general, to provide for the defence of the colonies by appor- 
tioning the quotas of men and money to be raised by the 
various colonies, and to control the army. Though the plan 
had been unanimously accepted by the convention, it met 



ATTEMPTS AT UNION 59 

with rejection at the hands of both the home government 
and the colonial assemblies, the colonists declaring that it 
gave too much power to the crown, the home government 
regarding it as too democratic. The convention, though it 
failed to effect an immediate union of the colonies, never- 
theless assisted in no small measure in making union ulti- 
mately possible; for it brought together for the first time 
leading men from nearly all the colonies and engaged them 
in discussions, which must have "done much to break down 
local prejudices and to awaken a sense of common interest 
among the colonists. 

73. Stamp Act Congress. Eleven years passed after the 
dissolution of the Albany convention without the meeting 
of another intercolonial congress. Then in 1765, after the 
British parliament had passed an act levying upon the col- 
onies a stamp tax, the revenue to be used toward the sup- 
port of a regular army in the colonies, there occurred the 
stamp act congress. It will be seen at once that this con- 
gress was very different from anything that had preceded it. 
All previous attempts at union among the colonies had been 
made either at the suggestion or with the approval of the 
home government for purposes of defence against some out- 
side enemy; and the sentiment in favor of union had never 
been strong enough to render any of the proposed plans of 
union acceptable to more than a few of the colonies. By 
the passage and attempted enforcement of the stamp act 
the British government accomplished at a blow the cooper- 
ation of the colonies that it had vainly tried to effect during 
the long period of the French and Indian wars; only now 
the efforts of the union were to be directed against the 
mother country herself instead of her old rival, France. 



60 CIVIL GOVERNMENT 

74. Work of the Congress. The congress, which had 
been called by the Massachusetts house of representatives, 
met in New York in October, 1765, with representatives 
present from nine colonies (Massachusetts, Connecticut, 
Rhode Island, New York, Pennsylvania, New Jersey, Mary- 
land, Delaware, South Carolina) and promises of support 
from the rest. Though unquestionably a revolutionary 
body, having no right to exist under the British constitution, 
the congress seems to have been made up for the most part 
of moderate men, who were able to content themselves with 
drawing up a declaration of the rights and grievances of the 
colonies, and petitions and memorials to the king and to 
parliament. Considering the state of excitement into which 
the colonies had been thrown by the attempted enforce- 
ment of the stamp act, this seems to us now like mild ac- 
tion. As a matter of fact, the declaration of rights contained 
much that only the boldest spirits would have ventured to 
assert a year earlier. Affairs had been moving rapidly in 
the colonies. The stamp act congress no longer demanded, 
as Otis of Massachusetts had done in 1764, representation 
in the house of commons; it declared instead that "the 
people of these colonies are not, and, from their local cir- 
cumstances, cannot be, represented in the House of Com- 
mons," and that no taxes "can be constitutionally imposed 
on them, but by their respective legislatures." 

75. Committees of Correspondence. During the nine years 
that elapsed between the meeting of the stamp act con- 
gress and that of the first continental congress, events 
were crowding each other rapidly in the colonies. It would 
be inexpedient to rehearse them all here. Our task is to 
trace as clearly as we can the growth of the movement 



ATTEMPTS AT UNION 61 

toward a permanent union. In 1768, after the passage by 
parliament of further revenue acts, the Massachusetts legis- 
lature sent a circular letter to the other colonial assemblies 
suggesting concerted action on the part of the colonies, and 
received favorable replies. It was not until 1773, however, 
that a plan was devised for keeping the colonies continuously 
in touch with each other and organizing them for effective 
action. This was brought about through colonial "com- 
mittees of correspondence." The year before, local com- 
mittees of correspondence had been appointed in the vari- 
ous towns of Massachusetts for the purpose of considering 
the rights and grievances of the citizens and ascertaining 
the state of public opinion in regard to them. This sug- 
gested to Virginia the advisability of similar committees in 
the various colonies. Accordingly in 1773 such a committee 
was appointed by the Virginia assembly, whose example was 
soon followed by the assemblies of Massachusetts, Rhode 
Island, Connecticut, New Hampshire, and South Carolina. 
Later the disturbances precipitated by the attempts to col- 
lect the tax on tea brought six more colonies into line, so 
that finally only Pennsylvania had no committee of cor- 
respondence. This was the longest step yet taken toward 
the political union of the colonies. 

76. The First Continental Congress. The first conti- 
nental congress was brought about directly by a series of 
parliamentary acts intended to put an end to such disturb- 
ances as had arisen in connection with the tea tax. Most 
of these measures were directed against Massachusetts; but 
the other colonies saw in them a menace as well to their 
own liberties, and the protest was general. New York and 
Rhode Island proposed a general congress. The Virginia 



62 CIVIL GOVERNMENT 

house of burgesses appointed a day of fasting, and when 
dissolved for this action, immediately formed themselves 
into a convention and advised, among other things, annual 
intercolonial congresses. The actual call, however, came 
from Massachusetts in June, 1774. The congress met in 
Philadelphia in September of the same year, with fifty-five 
delegates present, representing twelve colonies. In Georgia 
the governor had succeeded in preventing the appointment 
of representatives. The work of the congress consisted in 
the drawing up of a declaration of rights hardly more radical 
than that of the stamp act congress, together with a pe- 
tition to the king, and the more important work of establish- 
ing the " American Association" to enforce the non-impor- 
tation agreements already existing. Before adjournment in 
October the congress provided for the meeting of a new 
congress in May of the following year, in case the grievances 
of the colonies were not redressed in the meantime. 

77. A Union Formed. The first continental congress, 
like the stamp act congress, had been simply an advisory, 
or at most, an executive body. Its successor, on the other 
hand, found itself compelled by the pressure of events to 
assume almost at once a much wider range of activity. With 
the meeting of the first continental congress the colonies 
may be said to have accomplished a sort of union, imper- 
fect as yet, to be sure, but still a union; but it was not until 
after the second continental congress had begun its work 
that the demand for independence was openly voiced. Up 
to that time the colonists had been striving simply to main- 
tain what they conceived to be their rights as Englishmen, 
and most of them looked with no little disfavor upon any 
suggestion of separation from the mother country. Now 



ATTEMPTS AT UNION 63 

the course of events brought about a rapid change of senti- 
ment. 

78. The Second Continental Congress. Early in its his- 
tory this second congress had drafted a new petition to the 
king, generally known as the "olive branch" petition. To 
this the king did not even pay the courtesy of a formal 
answer. Instead, he issued a proclamation declaring the 
colonists to be rebels, closing the American ports, and warn- 
ing foreign nations not to trade. This contemptuous treat- 
ment convinced many that the colonists need hope for noth- 
ing at the hands of the king; and when, shortly after, the 
news reached America that the British government had 
hired German soldiers to help fight their battles in the col- 
onies, even the most conservative began to admit the neces- 
sity of separation. The colonies were besides sufficiently 
well organized politically to make separation possible. As 
we have already seen (§ 52), state governments had been 
organized by the advice of congress during the year preceding 
the declaration of independence; and the events of that 
year had compelled congress to assume also the functions 
of a general government. It had established an army, 
drawn up regulations for its government, and appointed a 
commander-in-chief; it had established a committee of 
correspondence with "our friends abroad," and had opened 
the American ports except to British vessels; it had issued 
paper money; finally, it adopted the declaration of inde- 
pendence and appointed a committee to draft articles for 
the government of the states thus newly created. Then, 
after making provision for funds for the prosecution of the 
next year's campaign, the second continental congress tem- 
porarily adjourned in December of 1776. Continental con- 



64 CIVIL GOVERNMENT 

gresses continued to meet with only short periods of inter- 
mission from this time until the ratification of our present 
constitution; but their work, except as it concerns the ar- 
ticles of confederation and the constitution, is matter for' 
history rather than civics. 

Library References. — Ashley, §§ 77-91; Macy, pp. 36-38; Montgom- 
ery* PP- 75> 94-95* i3 8 i l6 3~i7 2 > *15-?-1 6 > i79~ l82 > 184-186; Fiske, pp. 
209-213; Hinsdale, pp. 69-72, 424-453; Bryce, Vol. I, pp. 19-20; Chan- 
ning, pp. 91-95, 138-139, 153-206; Curtis, Vol. I, Chaps. I-IV; Thwaites, 
pp. 142-143, 154-159, 161-164, 269-271; Roberts, Vol. I, pp. 316-317; 
Hart, pp. 50-63, 73-80; Lalor, Articles on Albany Plan of Union, Conti- 
nental Congress; Bancroft, Vol. I, pp. 291-296, Vol. II, pp. 385-388, Vol. 
Ill, Chap. XII, Vol. IV, Chap. IV, XXVIII; Frothingham, Rise of the 
Republic of the United States; Fiske, American Revolution, Vol. I, Chap. 
III-IV. 

QUESTIONS ON THE TEXT 

53. Over how long a period did the attempts at union extend? 

54. Mention some of the conditions which made union between 
the colonists possible and desirable. 

55. The geographical and industrial conditions of the colonies 
made them independent of one another. Explain how. 

56. When and for what purpose was the first union of American 
colonists formed? What name was given to this organization? 
Show how it developed into the confederation of 1777. 

57. For what purpose and by whom was the Albany congress 
(convention) of 1754 called? 

58. Outline Franklin's plan of union. How was the plan re- 
ceived by the colonists and the home government? 

59. When and for what purpose was the stamp act congress 
called? Where was it held? How did it differ from other early 
conventions and congresses? 

60. Give an account of the first continental congress (1774), 
and of the second continental congress (1775), touching the origin, 
the organization, and the work accomplished by each. 



CHAPTER V 

THE ARTICLES OF CONFEDERATION 1 (1781-1789) 

79. Need of Legal Basis for the Union. It is clear that 
the continental congress felt from the first the necessity of 
making permanent the union of the colonies now effected 
by placing beneath it a definite legal foundation. Almost a 
year before the adoption of the declaration of independence, 
while the sentiment in favor of separation from the mother 
country was still weak, congress considered a plan drafted 
by Franklin for the "confederation and perpetual union" 
of the colonies. The title by which the union was to be 
known — the United Colonies of North America — shows 
that independence was not yet contemplated. It is fortunate 
that Franklin's plan was never adopted. Had it been, it 
would almost certainly have formed the basis of the new 
government when the declaration of independence brought 
into existence a new nation, and would have long delayed, 
if it had not altogether prevented, the adoption of our pres- 
ent constitution; for, though it failed to provide a strong 
central government, it avoided the most glaring defects of 
the articles of confederation, and might have been amended 
so as to furnish a practicable, if far from perfect, scheme of 
government for the new state. 

80. Drafting and Adoption of Articles. A year later we 
find congress again concerned with the question of provid- 

1 For articles of confederation, see Appendix. 

65 



66 CIVIL GOVERNMENT 

ing a basis of law for the union, which was now about to 
become a union of states instead of a union of colonies. 
On the same day two important committees were appointed, 
one to draft the declaration of independence, the other to 
draft articles of confederation for the states about to be 
created; but more than a year elapsed before the articles 
were adopted by congress, and it was not until 1781, when 
the war was already drawing to a close, that they were 
finally ratified by all the states and became the law of the 
land. 

81. Delay in Ratification. The reasons for the delay in 
the ratification of the articles by the different colonies were 
in part the same that had made any sort of union difficult 
— mutual jealousy and distrust on the part of the states 
and fear of any superior government. There was, besides, 
a clear recognition in some states of the inadequacy of the 
proposed government as well as a definite objection to cer- 
tain provisions of the articles, particularly that by which 
power was apportioned equally among all the states regard- 
less of size, wealth or population. The delay was occa- 
sioned chiefly, however, by the dispute concerning the land 
claims of some of the states to portions of the region lying 
west of the Alleghanies. Basing their claims for the most 
part on the old colonial charters, which had extended their 
boundaries indefinitely westward, the states contended that 
they had succeeded on the declaration of independence 
to all the powers of the British crown in this unoccupied 
territory. Not all the states, however, were possessed of 
such claims, and those that lacked them objected strenu- 
ously to allowing them in the cases of the others. If inde- 
pendence were achieved, they argued, it would be by the 



THE ARTICLES OF CONFEDERATION 67 

united efforts of all the states, and these unoccupied lands 
ought to belong to the confederacy for the benefit of all. 
Accordingly some of the states refused to ratify the articles 
until some agreement should be reached in this matter. 
Finally, in 1780, New York ceded to the United States the 
lands claimed by her, Virginia promised similar action, and 
Maryland, the last of the states to ratify, withdrew her op- 
position and formally signed the articles on the first of March, 
1781. 

82. Character of the Government Established. The gov- 
ernment established by these articles was something very 
different from our present federal government. It was a 
confederation, not a federal state; a league, not a national 
government. This the framers of the articles took pains to 
make clear. The union is called "a firm league of friend- 
ship" between the states "for their common defence, the 
security of their liberties, and their mutual and general 
welfare," and it was not intended to be more than a league. 
It required nearly a decade of unsuccessful effort to carry 
on the government under the articles, in order to convince 
the members of the confederation that the maintenance of 
such a league was impossible without a further surrender of 
sovereignty on the part of the individual states than was 
provided for in the instrument. 

83. Powers of Congress. Under the articles the powers 
of the federal government were vested in a congress consist- 
ing of a single chamber, whose members represented not the 
people of the United States, but the separate states; and 
each state, though it might send any number of delegates 
from two to seven, had but a single vote in the decisions of 
congress. In other words, the articles simply legalized the 



68 CIVIL GOVERNMENT 

existence of the continental congress without changing its 
character. To this body was intrusted the sole power of 
dealing with foreign nations, whether in the way of sending 
and receiving ambassadors, negotiating treaties, declaring 
war or concluding peace; but it was prohibited from enter- 
ing into any commercial treaty which should in any way 
interfere with the right of the state legislatures to impose 
duties or prohibit the exportation or the importation of 
commodities. Congress was given also the power "to as- 
certain the necessary sums of money to be raised for the 
service of the United States and to appropriate and apply 
the same for defraying the public expenses;" to borrow 
money or emit bills of credit; to determine the number of 
land forces to be raised and to make requisitions from each 
state for its quota; to build and equip a navy; to appoint 
all naval officers and all except regimental officers for the 
land forces; to make rules for the government of army and 
navy and to direct their operations. The money for de- 
fraying federal expenses, however, was to be drawn from a 
common treasury supplied by the states, the taxes for paying 
each state's proportion to be levied by the state legislature; 
and the land forces were to be raised, clothed, armed, and 
their regimental officers appointed by the state legislatures. 
84. Other Provisions. In judicial matters the powers of 
congress were limited to the establishment of courts for the 
purpose of dealing with offences committed on the high 
seas, and to the settlement on appeal of controversies be- 
tween states. It was also the business of congress to regu- 
late the value of coin, fix the standard of weights and meas- 
ures, manage Indian affairs and establish post-offices. Two 
other provisions should be especially noted, since it was their 



THE ARTICLES OF CONFEDERATION 69 

existence particularly that made government under the ar- 
ticles practically impossible. By one of these, congress was 
prohibited from taking any important action without the 
assent of nine states; by the other, no amendment was pos- 
sible without the ratification of every state. 

85. Defects of the Articles. So long as the pressure of 
the war lasted, congress was able to secure some degree of 
concerted action on the part of the states; but the articles 
had hardly gone into effect when that pressure was with- 
drawn and their defects became promptly and increasingly 
apparent. They were the defects naturally inherent in a 
confederacy under circumstances that demanded before any- 
thing else a strong central government. The articles seemed 
to confer upon congress somewhat extensive powers; as a 
matter of fact they left it impotent. It was given ample 
power to make laws, but was left with no means of enforcing 
them. Executive power remained almost entirely in the 
hands of the states, so that congress was compelled to make 
requests like a suppliant instead of issuing commands like a 
sovereign. Its position was illogical and absurd. In its 
hands alone lay the treaty-making power; yet it could not 
guarantee to other nations concerned that its treaties would 
be observed, since it had no power of compelling the obedi- 
ence of the states. It could appropriate money as freely 
as it saw fit for the purpose of defraying federal expenses; 
but it did not itself possess the taxing power, and it had no 
means of compelling the state legislatures to exercise it in 
its behalf. It could make requisition for troops; but the 
states might heed the requisition or not, as they pleased. It 
had no power of regulating foreign commerce, no power of 
settling interstate disputes except on appeal, no federal 



7© CIVIL GOVERNMENT 

judiciary. Moreover, with the cessation of the war the 
states lost interest in federal affairs and not infrequently 
failed to send delegates to the federal congress, making it 
thus still more difficult to secure the nine votes necessary to 
the passing of any important measure. Finally, these de- 
fects of the articles were beyond remedy, since amendment 
had been made practically impossible. 

86. Framers not Unconscious of Defects. It can hardly 
be supposed that the framers of the articles were uncon- 
scious of these defects. Our country has never produced 
abler statesmen than those of the period under considera- 
tion. Franklin's plan of confederation, drafted a year earlier 
than the articles, had offered a far more practicable scheme 
of government. It had made congress representative, not 
of the states, but of the people of the United States, by ap- 
portioning representation according to population and giving 
each delegate one vote; it had given congress control of for- 
eign commerce; and it had made amendment possible by 
vote of a majority of the state legislatures. Just why this 
plan was never adopted is not clear. Probably public 
opinion was not yet ripe for it; the sentiment in favor of 
union not yet strong enough to render its provisions accept- 
able. Probably, too, the articles provided as near an ap- 
proach to a federal union as the feeling of the time per- 
mitted. 



Library References. — Ashley, §§ 94-105; Macy, p. 38; Dawes, pp. 45- 
46; Fiske, pp. 213-217; Hinsdale, Chap. VI; Bryce, Vol. I, pp. 20-21; Curtis, 
Vol. I, Chaps. IV-XV; Channing, §§ 159-161, 165-178; Montgomery, pp. 
209-214; Fiske, Critical Period, Chaps. II-V; Hart, Chap. V; Lalor, Article 
on Articles of Confederation; Bancroft, Vol. V, pp. 10-15, 199-208, Vol. 
VI, pp. 110-194; McMaster, Vol. I, pp. 130-136, 184-185, 200-210, 281- 
354; Schouler, Vol. I, pp. 14-18, 20-24; Wilson, §§ 865-868. 



THE ARTICLES OF CONFEDERATION 7 1 

QUESTIONS ON THE TEXT 

61. Describe the form of government that prevailed in this 
country during the revolutionary period. Mention its principal 
defects. 

62. What was Franklin's plan for "confederation and perpetual 
union" ? 

63. What occasioned the delay in the ratification of the articles 
of confederation? 

64. How did the government under the articles of confedera- 
tion differ from the government under the present constitution ? 

65. Define confederacy. 

66. What was the only department of government established 
by the articles of confederation? Why was the government estab- 
lished by the articles of confederation weak ? How long did it en- 
dure? 

67. Mention two important defects in the articles of confedera- 
tion. If you have not already done so, carefully read the articles 
of confederation and the declaration of independence. 

For the articles of confederation, see Appendix; also for the constitu- 
tion of the United States. 



CHAPTER VI 

THE CONSTITUTION: ITS FORMATION AND ADOPTION 

87. Condition of Affairs under the Articles of Confedera- 
tion. The course of events from 1781 to 1787 gave in- 
disputable proof of the impossibility of government under 
the articles. So long as the struggle with the mother coun- 
try lasted, the states could not help seeing that their only 
safety lay in union; and they were following the dictates 
of the merest self-interest in sending to congress their ablest 
men and in granting to that body, however grudgingly, the 
necessary means for conducting the government. As the 
fierceness of the struggle abated, however, the necessity for 
union was no longer so keenly felt. State interests loomed 
larger and larger; federal interests dwindled. The most 
distinguished statesmen no longer sat in the federal legis- 
lature. Their talents were demanded at home for the solu- 
tion of difficult problems of state government; so that the 
national legislature, given by the articles no means of pro- 
viding for its own needs and left wholly dependent upon 
the good-will of the states, soon found itself deprived of even 
such power of persuading the states as it had possessed 
through the pressure of the war and the personal influence 
of its members. 

88. Attitude of the States. Gradually the states, having 
withdrawn from the service of the federal government its 
best ability, assumed toward it, if not an attitude of actual 
defiance, at best one of distrust or indifference. More than 

72 



THE CONSTITUTION 73 

once, whether through indifference or a more active senti- 
ment, they made it impossible for congress to proceed to 
business at the proper time by failing to send delegates from 
enough states to transact important business or to settle 
important questions. National appeals for money many of 
them simply disregarded, so that between 1782 and 1786 
congress obtained only about one-sixth of the amount asked 
for. Threats of secession were heard from more than one 
quarter, and even overt acts of defiance were not unknown. 

89. The Feeling Between the States was no better than 
that between the national government and the states. Ques- 
tions of trade involved them in continual quarrels. New 
England sought to secure a virtual monopoly of the carry- 
ing trade by demanding the exclusion of British vessels, a 
demand to which the southern states would not accede. 
States "without seaports were forced to pay tolls to their more 
fortunate neighbors through whose ports their goods were 
received. Interstate tariffs grew up wherever conditions 
favored them, and tariff wars provided a constant source of 
irritation. Between the east and the west, also, there was 
a clash of interests. The east desired commercial intercourse 
with Spain and the Spanish colonies, which that country 
was willing to grant in return for the surrender by the 
United States of the right to free navigation of the Missis- 
sippi, which now flowed for two hundred miles through 
Spanish territory; and a considerable portion of congress 
was willing to negotiate a treaty on this basis. To this 
surrender, however, the people of the west, particularly 
those of Kentucky and what is now Tennessee, were un- 
alterably and vehemently opposed. Bitter discussion be- 
tween east and west followed, and threats of secession were 



74 CIVIL GOVERNMENT 

heard on both sides; but the project was finally abandoned. 
Even within the states troubles were rife. Financial dis- 
tress, which large issues of paper money had only intensified, 
was everywhere apparent, and was leading in some cases to 
armed rebellion on the part of the debtor class. 

90. The General Government Helpless. Meantime the 
general government, compelled to stand helplessly by, alike 
incapable of relieving the internal distress of the states, of 
adjusting interstate disputes, or of extricating the nation 
from its difficulties, was regarded by foreign nations with 
scorn or indifference. It was not without justification that 
the French minister wrote in 1784 that there was no general 
government in the country; nor was it strange that the com- 
mission appointed that year to conclude treaties with foreign 
nations and consisting of men so able and persuasive as 
John Adams, Franklin, and Jefferson, should have been 
able to induce only one foreign country to enter into treaty 
relations with the confederation. By 1786 the feeling had 
become general that nothing short of a thorough-going revi- 
sion and amendment of the articles of confederation could 
remedy the existing evils. 

91. Suggestions for Amendment. The suggestion that the 
articles be amended was by no means new. In 1781, even 
before all the states had ratified them, it had been pro- 
posed that congress should be given power to raise revenue 
by levying import duties to the extent of five percent ad va- 
lorem. The proposition was discussed for a year, but was 
finally defeated by the refusal of Rhode Island to agree to 
the arrangement. In 1783 the project was revived and a 
similar proposition was made, but with more limitations upon 
congress, only to meet defeat again, this time at the hands of 



THE CONSTITUTION 75 

New York. Two years later Massachusetts instructed her 
delegates in congress to propose a general revision of the 
articles; but nothing came of this suggestion, and the 
convention which finally met for that purpose in 1787 and 
ended by framing an entirely new constitution, originated 
in a different way. 

92. Origin of the Constitutional Convention. The con- 
stitutional convention grew out of an attempt on the part 
of a few of the states to reach some sort of agreement in 
commercial matters. In 1785 a commission from Maryland 
and Virginia met at Alexandria for the purpose of adjusting, 
if possible, the differences between those states in regard to 
the navigation of the Potomac River and the Chesapeake 
Bay. Before the commission broke up the Virginia dele- 
gates proposed that a similar commission composed of dele- 
gates from all the states should meet at Annapolis for the 
purpose of discussing trade relations throughout the country. 
The proposition was favorably received, and the following 
year, 1786, occurred the Annapolis convention. 

93. The Annapolis Convention. When the delegates as- 
sembled at the appointed time, it was found that repre- 
sentatives were present from five states only, though a few 
others were on the way. With so incomplete a represen- 
tation of the confederation it was useless to attempt to 
proceed with the business for which the convention had been 
summoned, but such discussions as occurred revealed the 
existence of a general sentiment in favor of the revision of 
the articles of confederation. Accordingly, without await- 
ing the arrival of the tardy delegates, those present before 
adjourning passed a resolution recommending a convention 
of delegates from all the states " to devise such further pro- 



?6 CIVIL GOVERNMENT 

visions as shall appear to them necessary to render the con- 
stitution of the federal government adequate to the exigencies 
oj the union" This resolution was transmitted to con- 
gress and to the state legislatures; but it was not until five 
states had already appointed delegates to the new conven- 
tion that congress approved it and recommended its adoption 
by the states. Thereupon the rest of the states, with the 
exception of Rhode Island, promptly adopted the recom- 
mendation of congress and appointed their delegates. 

94. The Constitutional Convention. The 14th of May, 
1787, had been fixed upon as the day, and Philadelphia 
as the place of meeting for the new convention; but it was 
not until May 25 that delegates had arrived from a sufficient 
number of states to enable the convention to organize for 
its work, and two months more elapsed before all of the 
twelve states that finally sent delegates were represented. 
Rhode Island alone took no part in the convention. In 
that state the governor and the upper house of the legislature 
were in favor of sending delegates; but the assembly, made 
up largely of men without education and of narrow political 
views, who were moreover fearful of the effect of the con- 
vention upon their financial policy of wiping out all debts by 
means of paper money, refused to send representatives. The 
convention as finally constituted consisted of fifty-five mem- 
bers, among them the ablest and most distinguished states- 
men of the time. Together they made up a body that has 
rarely been equalled in intelligence, ability, patriotism and 
political sagacity. As has nearly always happened in the 
case of political bodies chosen at critical junctures in our 
history, the convention was strongly representative of the 
wisely conservative element in the country. No true patriot 



THE CONSTITUTION 77 

could have anything to fear in entrusting his political inter- 
ests to such men as figured most prominently in the proceed- 
ings of the convention. 

95. Influence of Washington. Easily foremost, of course, 
was Washington, president of the convention, cautious, saga- 
cious, rich in experience, utterly free from local prejudice. 
His position as presiding officer naturally precluded his tak- 
ing part in the debates; but it has been said of him that, 
through the power of his personality, he had the greatest 
influence on the total result of any man in the convention. 
Unquestionably the fact that he approved the constitution 
assisted in no small degree in securing for it the ratification 
of otherwise doubtful states. 

96. Hamilton and Madison. Of those who engaged actively 
in the debates of the convention, the two most prominent 
and almost equally influential characters were Hamilton 
and Madison. In spite of the fact that they were young 
men (Hamilton was but thirty, and Madison six years older), 
both had already rendered political service as members of 
congress, and Hamilton had been one of the delegates to 
the Annapolis convention. Hamilton's keen insight into 
the principles of government, combined with a remarkable 
power of logical, straightforward reasoning, stood him in 
good stead in the debates of the convention. His greatest 
service in the work of that body was his successful insistence 
upon the absolute necessity of creating an efficient national 
government, even though it might involve a very consider- 
able curtailment of the powers of the states. Madison 
was even more active, if not more influential, in the conven- 
tion than his colleague. He was one of the few, destined 
finally to become the majority, who believed that no satis- 



78 CIVIL GOVERNMENT 

factory amendment of the articles of confederation was 
possible, and that the only thing to do was to throw them 
overboard and frame a new constitution. To this proposi- 
tion it was objected, reasonably enough, that the assembly 
in acting upon it would be exceeding its authority, since it 
had been given power only to revise the articles of con- 
federation; and in furnishing convincing answers to objec- 
tions of this type he rendered most efficient service. It 
was Madison, also, who drafted the scheme of government 
known as the Virginia plan, which was to become the basis 
of the constitution as it was finally adopted. Nor did 
the work of these two young men end with the adjourn- 
ment of the convention. Through the series of political 
essays known as The Federalist, written for the purpose of 
explaining and defending the constitution after it had been 
submitted to the people for ratification, they did yeoman's 
service in securing its adoption. 

97. Franklin. Scarcely inferior in influence, though much 
less active in debate, was the venerable Franklin, now in 
.his eighty-second year. For half a century he had had 
intimate knowledge of public affairs; for a quarter of a cen- 
tury he had represented his country or a portion of it at 
foreign capitals. Twice had he drafted a plan of union and 
a scheme of government for the colonies, neither of them, to 
be sure, destined to be put into operation — one the plan 
adopted by the Albany convention in 1754, but rejected by 
the colonies; the other the scheme considered by the conti- 
nental congress a year before the articles of confederation 
were drafted, but never acted upon. It was his particular 
task in the convention to pour oil on the troubled waters. 
When the debate became too bitter or too personal, his 



THE CONSTITUTION 79 

ready wit restored everybody to good humor, and more than 
once his tact prevented differences of opinion from becom- 
ing irreconcilable disputes. 

98. Other Prominent Delegates present were George Mason 
and Edmund Randolph of Virginia; John Dickinson of Del- 
aware; James Wilson, Robert and Gouverneur Morris of 
Pennsylvania, to the last of whom the constitution mainly 
owes the admirable clearness and simplicity of its language, 
which has made the work of interpretation so much easier 
and surer; Roger Sherman of Connecticut, who had been 
a member of nearly every congress; Elbridge Gerry of 
Massachusetts; Rufus King of New York, the author of 
the prohibition on the states to pass laws affecting the obli- 
gation of contracts; Paterson of New Jersey (afterwards 
governor, 1 791-1793); and the two Pinckneys and John 
Rutledge of South Carolina. These were the most distin- 
guished members of the assembly, but all were men of 
ability and experience. Of the fifty-five present, eighteen 
were at the same time members of congress; and there were 
only twelve who had not at some time sat in that body. 

99. Work of the Convention. As we have already seen, 
the organization of the convention was delayed until May 25 
by the lack of a quorum. Once organized, however, the 
work proceeded without interruption for four months, daily 
sessions being held until the 17th of September, when the 
engrossed copy was signed and the convention finally ad- 
journed. The work throughout was carried on behind 
closed doors — wisely, since, had the questions under discus- 
sion been known, the pressure of public opinion upon the 
delegates would probably have made agreement impossible. 
It was not until long afterwards, when the very full notes 



80 CIVIL GOVERNMENT 

kept by Madison of the debates of the convention were 
printed, that the difficulties it had surmounted became 
known. 

100. Difficulty of the Task. In some respects the task 
before the framers of the constitution was peculiarly diffi- 
cult. ' ' The establishment of a constitution in a time of 
profound peace, by the voluntary consent- of a whole people, 
is a prodigy, to the completion of which I look forward with 
trembling anxiety," wrote Hamilton; and many of his con- 
temporaries shared his feeling. In the first place there had 
been no overwhelming public sentiment in favor of the call- 
ing of the convention, nor was there any profound belief 
that it would accomplish anything. Then, too, within the 
convention itself there was a strong feeling that it had no 
power beyond that of revising the articles of confederation; 
and not a little argument was needed to induce the assembly 
to undertake the framing of a new constitution. That ques- 
tion once decided, the convention found itself face to face 
with a peculiar condition of affairs. Its task was not the 
comparatively simple one of devising a scheme of govern- 
ment for a single unitary state, in which the central govern- 
ment should be the source of power for all minor political 
divisions; nor had it on the other hand to deal with a simple 
confederation, in which the component states were still 
sovereign and independent with full power at any time to 
withdraw from the union. The course of events during the 
revolution had unquestionably established a nation with a 
life of its own, yet it had left the integrity of the states un- 
touched. The states were still free political agents, however 
strongly public necessity might urge them to form a national 
union. "We were neither the same nation nor different 



THE CONSTITUTION 81 

nations," said Gerry. In short, the task before the conven- 
tion was that of framing a constitution for the first great 
federal state in history. Just how this was to be done no 
one saw clearly at the opening of the convention. Among 
the members of the assembly the most diverse opinions were 
held as to what should be the character of the new govern- 
ment. Not a few contended for the maintenance of the 
existing form of government with only such revision of the 
articles of confederation as experience had shown to be 
absolutely necessary, i.e., they advocated, if not the extreme 
state rights doctrine, at least as great a degree of state sover- 
eignty as was at all compatible with orderly government. 
A few, notably Hamilton, advocated the establishment of 
a strongly centralized national government, in which the 
states should be shorn of all their sovereign power. The 
majority, however, hoped for the establishment of a moder- 
ately strong central government, with enough curtailment 
of state prerogatives to render the general government thor- 
oughly efficient. 

101. Plans Submitted. The real work of the convention 
began on the 29th of May when Edmund Randolph of 
Virginia submitted a plan of government, principally the 
work of Madison, consisting of fifteen propositions, most 
of which were finally embodied in the constitution. This 
plan is known as the Virginia plan. On the same day 
(May 29th) Charles Pinckney of South Carolina presented 
another plan very similar in its provisions to that of the 
Virginia delegation but more detailed. This received little 
attention. The interest of the convention centred upon 
the Virginia plan and its principal opponent the New 
Jersey plan, introduced by Paterson of New Jersey, and 



82 CIVIL GOVERNMENT 

expressing the wishes of the smaller states. The Virginia 
plan provided for a government to consist of the three depart- 
ments — executive, legislative, and judicial — the legislature to 
consist of two houses, the lower elected by the people, the 
upper by the lower from candidates nominated by the state 
legislatures. In both houses representation was to be based 
on free population. Congress was also to choose the execu- 
tive and the judiciary. This plan unquestionably gave the 
control of affairs into the hands of the larger states, and it 
met with fierce opposition on the part of the smaller ones. 
They therefore agreed upon the series of resolutions intro- 
duced by Paterson. This plan proposed to continue the 
existing government but to give congress power to regulate 
commerce, to raise revenue, to establish a federal judiciary, 
and to coerce the states. While these plans were under discus- 
sion, Hamilton made a speech to the convention in the course 
of which he read a plan outlining a strongly centralized 
national government in which the states had little power. 
This has been called Hamilton's plan; but he knew, as he 
himself said, that it was very remote from the ideas of the 
people, and he probably intended only to outline more care- 
fully his own views and the amendments he intended to offer 
at the proper time, rather than to submit a formal plan for 
the consideration of the convention. 

102. The First Great Compromise. As the discussion of 
the two principal plans proceeded, it became evident that only 
a most liberal spirit of compromise could enable the conven- 
tion to effect anything. Differences of opinion among the 
delegates were so wide as to be all but irreconcilable. More 
than once the convention seemed on the verge of dissolu- 
tion, but each time some compromise was effected and 



THE CONSTITUTION 83 

the work proceeded. The first great crisis came in the 
course of the discussion as to whether there should be a 
national or a federal government, and whether there should 
be equal representation of the states in congress or whether 
representation should be apportioned on the basis of popu- 
lation. Naturally the smaller states contended fiercely for 
equal representation. Finally one of the Connecticut dele- 
gates suggested a compromise, based on the system in use 
in the legislature of his own state, according to which there 
was to be equal representation of the states in the senate 
but representation apportioned on the basis of population 
in the house of representatives. To this the larger states 
agreed after some discussion, and thus the first great com- 
promise of the constitution was effected. 

103. The Second Great Compromise. This question as to 
the manner of representation in the two houses having been 
settled, another arose as to the apportionment of represen- 
tatives in the lower house. The population of the southern 
states contained a large proportion of slaves possessed of no 
political rights. Ought they to be counted in determining 
the number of representatives from those states; and if 
counted for that purpose, ought they not to be counted also 
in apportioning direct taxes? Finally a compromise was 
effected upon this question also — the three- fifths compro- 
mise, as it is sometimes called — according to which five 
slaves were to be counted as equal to three white men, and 
direct taxes were to be apportioned in the same manner as 
representatives. 

104. The Third Great Compromise also was made neces- 
sary by the existence of slavery and the slave trade. The 
real question at issue was whether or not the general gov- 



84 CIVIL GOVERNMENT 

ernment should be given control over commerce. The ill 
effects of allowing each state commercial independence had 
become evident under the articles of confederation, and the 
states engaged in general commerce desired its regulation 
by the general government. On the other hand, the states 
engaged in the slave trade, knowing the sentiment enter- 
tained against it at the north, feared that heavy losses might 
be entailed upon them by some prohibitory legislative act 
of the general government. A compromise was finally 
reached by which it was agreed that congress should be 
given control over commerce but should be forbidden to 
pass any act prohibiting the importation of slaves before 
1808, though it might levy a tax of ten dollars each on all 
slaves imported. Of this last provision, however, congress 
never took advantage. It should not be supposed that these 
three were the only compromises of the constitution; it has 
been said of it indeed, that it was nothing but a series of 
compromises. These three, however, were of vital impor- 
tance, since a failure to reach an agreement on any of these 
points would have resulted almost inevitably in the disso- 
lution of the convention. 

105. Ratification. In accordance with the last article of 
the new constitution providing for its ratification, it was 
submitted on the 20th of September, 1787, to congress, 
where it was subjected to criticism for eight days before it 
was sent to the state legislatures, to be by them in turn sub- 
mitted to conventions chosen by the people of the several 
states. It was not until June 21, 1788, that the ratifica- 
tion of the nine states necessary to the establishment of 
the new government was secured. Thereupon congress 
made preparations for putting the constitution into opera- 



THE CONSTITUTION 85 

tion; and the other states, finding themselves confronted 
with the alternative of joining the union or standing alone 
in the world, since the old government established by the 
articles of confederation had been annihilated, ratified one by 
one, Rhode Island holding out until the end of May, 1790. 

106. Struggle over Ratification. Except in the smaller 
states, to which very considerable concessions had been made, 
ratification was nearly everywhere secured with difficulty. 
Had the matter been left to a direct vote of the people, 
taken all over the country^on the same day, it is doubtful 
if it could have been secured at all. Fortunately, as Mr. 
Bryce has noted, "The conventions were composed of able 
men, who listened to thoughtful arguments, and were them- 
selves influenced by the authority of their leaders." 1 Out 
of this struggle over ratification emerged the first two great 
political parties in the United States. The supporters of 
the constitution were called federalists; the opponents anti- 
federalists. The federalist party was in general the party 
of the moneyed classes — the public creditors, the mer- 
' chants, the lawyers; the antifederalist the party of the 
debtor class, the advocates of paper money — in general the 
less wealthy portion of the community. The antifederal- 
ists objected among other things to the absence of a bill 
of rights in the new constitution; to the power of taxation 
given the national legislature; to the power granted to the 
federal judiciary; to the paying of congressmen out of 
the federal treasury, thus making them independent of 
the states; to the voting by individuals instead of by states 
in the national legislature; in short, to what they considered 
the too aristocratic, too centralized form of the new govern- 

1 Bryce, Vol. I, p. 27. 



86 CIVIL GOVERNMENT 

ment. On the other hand, the views of the federalist party 
found expression most ably and thoroughly through the 
series of remarkable political essays written by Hamilton, 
Madison, and Jay, and afterwards collected and published 
under the title of The Federalists. Their effectiveness in 
helping to secure ratification has been already mentioned. 
Other influences, too, were at work. The support of such 
tried and trusted men as Washington and Madison, the 
compromises made to different sections and interests, the 
example of other states — all had their effect upon doubtful 
states; but unquestionably the two most potent influences 
were the almost universal economic distress; and the dread 
of foreign powers, especially Spain and England, who were 
believed, perhaps not wholly without reason, to be only 
awaiting a favorable opportunity for absorbing the youthful 
nation. 

107. Establishment of the New Government. As soon as 
the ratification of the necessary nine states was secured, 
congress passed an act providing for the establishment and 
organization of the new government. The first Wednes- 
day in January, 1789, was designated as the day for appoint- 
ing electors; the first Wednesday in February for assembling 
and voting for president; and the first Wednesday in March 
for " commencing the proceedings under the said constitu- 
tion.'' It was not until April 1st, however, that a quorum 
was secured in the house of representatives and that body 
was organized ; while in the senate a quorum was first pres- 
ent on April 6th. Thereupon the votes were counted and 
Washington was declared elected. Some further delay en- 
sued, but finally on April 30 occurred the inauguration of 
Washington and the installation of the new government. 



THE CONSTITUTION 87 

Library References. — Ashley, §§ 106-120; Macy, pp. 38-40; Hinsdale, 
pp. 82-116 ; Bryce, Vol. I, Chap. Ill; Fiske, pp. 217-219; Charming, pp. 
254-262, 270-275; Montgomery, pp. 214-218; Curtis, Vol. I, Chaps. XV- 
XXXVI; Fiske, Critical Period, pp. 214-350; Roberts, Vol. II, pp. 446- 
447; Hart, Chap. VI; Lalor, Article on the Constitutional Convention /Ban- 
croft, Vol. VI, Book II, Chap. VIII, Books III-IV, Book V, Chaps. II- 
III; Schouler, Vol. I, pp. 28-70; McMaster, Vol. I, pp. 390-399, 417-423, 
436-502. 

QUESTIONS ON THE TEXT 

68. Describe the political conditions which made necessary the 
present constitution of the United States. 

69. What evils was the United States constitution intended to 
remedy? Does it remedy those evils? Give reasons. 

70. What state took the first step that led to the formation of 
the present constitution? 

71. When and where was the constitution made? Name six 
objects stated in the preamble. 

72. How was the constitution framed? Name the three great 
compromises of the constitution. 

73. What differences of opinion existed between the framers of 
the constitution as to the powers of the federal government ? What 
are these differences sometimes called? 

74. What is meant by the statement: "The house of representa- 
tives represents the national idea; the senate represents the federal 
idea"? 

75. State the provisions under which the constitution took effect. 

76. The sessions of the constitutional convention were all exec- 
utive, i.e., the public was excluded from all meetings and the work 
of the convention kept secret until after final adjournment. Was 
this a wise thing to do ? Why ? 



CHAPTER VII 
THE CONSTITUTION: ITS ORIGIN AND NATURE 

108. Its Origin. In regard to the originality of the con- 
stitution the most opposite views have been entertained. 
Mr. Gladstone's remark that it is "the most wonderful 
work ever struck off at a given time by the brain and pur- 
pose of man," has generally been construed, whether it was 
so intended or not, as an assertion of its originality. On 
the other hand, Sir Henry Maine says that it is "in reality 
a version of the British constitution" as it then was. Both 
these statements are misleading, though both contain an 
element of truth. As a matter of fact, the convention 
wisely based its work as little as possible upon untried 
theories, as much as possible upon experience. Only 
where colonial or state experience furnished ' no precedent 
did they risk an invention of their own. At the same time, 
there were in the situation before the convention some ele- 
ments that were new, some problems for which the framers 
were compelled to devise new solutions. As for the British 
constitution, it unquestionably exercised a very considerable 
influence upon the framers of our constitution, but not di- 
rectly, as Sir Henry Maine's remark implies. Rather, that 
influence came to them filtered, for the most part, through 
the channels of colonial, revolutionary or early national 
experience. 

109. Origin of Special Provisions. Nothing could be truer 
than the oft quoted observation that nearly every pro- 



THE CONSTITUTION 89 

vision of the federal constitution that has worked well is 
one borrowed from some one of the state constitutions, 
nearly every one that has worked badly is one that the con- 
vention in the absence of precedents was obliged to devise 
for itself. It is interesting to note the source of some 
of these provisions. The separation of the government 
into three clearly defined departments, each independent of 
the others, had been characteristic of the colonies and after 
them of the states, the separation having been carried much 
further in America than in England. This characteristic 
reappears in an even more extreme form in the federal con- 
stitution. The division of the legislature into two houses, 
which has often been pointed to as a direct copy of the 
English system, is rather a copy of the plan almost univer- 
sally in use in the states, though it is true that in character 
the two houses of the federal legislature correspond much 
more closely to those of Great Britain. Even the names 
senate and house of representatives were in use in several of 
the states. The president also, in whom some writers have 
thought that they saw a copy of the British monarch, corre- 
sponds much more closely in character and function to the 
governors of the states, some of whom were called presidents. 
In several states, too, the office of vice-president existed. 
Some half-dozen or more of the states also provided a 
method of impeachment. 

110. Suggestions from the States. Certain states can be 
pointed to more especially as furnishing the suggestions for 
particular provisions. We have already seen that the differ- 
ent basis of representation in the two houses was suggested 
by the constitution of Connecticut. The veto power of the 
chief executive is found also in the constitution of Massa- 



90 CIVIL GOVERNMENT 

chusetts; the constitution of Delaware provided for the 
election of one- third of the senators every two years; the 
constitution of New York made provision for a census 
every seven years for the purpose of apportioning repre- 
sentatives; in Massachusetts and New Hampshire all rev- 
enue bills originated in the house of representatives. As 
a whole, the plan devised for electing the president was 
original; but even here the idea of an electoral college 
was derived from Maryland. Perhaps the truest proto- 
type for the supreme court is to be found, not in the 
states, but in the judicial committee of the privy council 
in Great Britain. In fact, in the provisions of the consti- 
tution there was little indeed that was new. Such origi- 
nality as there was lay rather in the attempt to frame a 
written constitution for a federation, and in. the idea of 
submitting it to the people for ratification. "The work 
of the convention was a work of selection, not a work 
of creation, and . . . the success of their work was not a 
success of invention, always most dangerous in government, 
but a success of judgment, of selective wisdom, of practical 
sagacity — the only sort of success in politics which can 
ever be made permanent. " 1 

111. Its Nature Different from the British Constitution. 
The character of the government established by the new 
constitution was something different not only from the gov- 
ernment of Great Britain, upon which it had been in many 
respects indirectly modelled, but from that of the confed- 
eration as well. It is doubtful if the framers themselves 
realized how widely their work diverged from the mass of 
charters, statutes and usages that made up the unwritten, 

1 Wilson, p. 475. 



THE CONSTITUTION 9 1 

highly flexible constitution of Great Britain. Perhaps the 
cardinal difference lay in the widely different character of 
the two great legislative bodies, parliament and congress. It 
should be remembered that the British parliament is and 
was then an absolutely sovereign body. It may make or 
unmake any law, change the constitution or the form of 
government at will, interfere with any of the "unalienable" 
rights of the citizen, do any one of a thousand things that • it 
never does do. None of its acts can be "unconstitutional," 
for there is no higher authority competent to pronounce 
them so. In legal theory it is the nation and possesses all 
of the nation's powers. The congress of the United States 
is no such sovereign body. Neither congress, nor the presi- 
dent, nor both together can move one step beyond the strict 
limits assigned them by the constitution. Their powers are 
carefully enumerated, and any acts done in excess of them 
are simply void. Sovereign power, such as belongs, theoreti- 
cally at least, to the British parliament can be exercised in 
the United States only by the whole body of the people act- 
ing in the manner prescribed by the constitution. 

112. Different from the Confederation. Between the new 
government and the old government of the confederation 
there were also some radical differences. The new constitu- 
tion did more than merely strengthen the general govern- 
ment so as to render it efficient. It changed a confederation 
into a federation, a league of states into a national state. 
The central government operated no longer upon the states 
merely, but upon the individual citizen as well. 

113. Growth of Nationality. To be sure, the constitution 
as it existed in 1789 is not exactly the constitution as it is 
to-day. It has been developed by amendment, first of all, 



92 CIVIL GOVERNMENT 

but even more by interpretation and by custom; and prac- 
tically all such development has been in the direction of 
nationalization, of consolidation. It must be admitted 
that the federation of 1789 was much looser, much more 
like the old confederation, than is the union of to-day. 
The public sentiment of the time, which was for the most 
part indifferent or lukewarm toward the union and jealously 
watchful of the prerogatives of the states, demanded such 
an interpretation of the constitution as would impose upon 
the general government the strictest limitations compatible 
with efficiency. As time passed, however, and the nation 
expanded, bringing into the union new states with no mem- 
ory of a time when the states were all and the union 
naught; as a network of railroads gradually spread over 
the country, bringing the people together and making them 
more homogeneous ; as war with other countries wakened 
a patriotism wider than state patriotism, and civil war 
finally swept away the last great barriers between sec- 
tions — the sentiment of nationality slowly prevailed over 
local prejudices and attachments; and instead of the old 
jealousy and distrust of the general government on the 
part of the states, there grew up a realization of the fact 
that under the constitution state government and national 
government are mutually complementary, that neither 
usurps the functions of the other, that each is a necessary 
part of a single scheme. 

114. Relation Between the States and the Union. The 
peculiar relation existing between the states and the national 
government is, perhaps, to the student of politics the most puz- 
zling feature of our constitution. It will be remembered that 
under the articles of confederation the general government 



THE CONSTITUTION 93 

was a government of delegated powers, these powers having 
been delegated by the states. Under the constitution the 
general government may still be said to be a government 
of delegated powers; but the source of authority is no longer 
the states but the people of the United States, though the 
people act through the state organization. Further we may 
say that, during the period of the confederation, the preva- 
lent theory was that the union had been formed by a mere 
compact between the states, from which they retained the 
power of withdrawing at will. From the time of the adop- 
tion of the constitution to the civil war this theory struggled 
for supremacy against the opposing opinion that by the rati- 
fication of the constitution the states had become insepar- 
able parts of the union, to which they had permanently sur- 
rendered their sovereignty. Practically, if not theoretically, 
this question was settled finally by the test of civil war; and 
since that struggle it is admitted that, whatever other powers 
the states may possess, they do not possess the power of with- 
drawing from the union (the right of secession). On the 
other hand, the states are not mere administrative divisions 
of the general government, nor are their powers delegated 
to them by the constitution. That instrument withholds 
from them certain powers; but such functions as they per- 
form, they perform by an inherent, not a delegated authority. 
Within their own spheres they are completely independent, 
self-governing bodies. Their government "is subordinate 
only in the sense of being less than national in its juris- 
diction." 

115. Departments of Government. Besides this delicate 
adjustment of powers between state and national govern- 
ment so that both operate without friction even within 



94 CIVIL GOVERNMENT 

the same sphere, perhaps the most remarkable feature of 
our constitution is the strict separation of the three great 
functions or departments of government — the executive, the 
legislative and the judicial. By thus separating these three 
essential functions of government, making them independ- 
ent and coordinate, and placing in the hands of each the 
means of defending itself against the encroachments of the 
other two, the framers of the constitution hoped to secure 
not only the rights of the individual citizen, but permanency 
for the form of government established. They tried to 
establish a complete system of " checks and balances," so 
that it would be impossible for any one department to over- 
shadow the others and seize supreme power. For example, 
the executive power is vested in the president; but through 
his veto power he holds a very effective check upon the 
legislature, while his right of pardon gives him a share of 
judicial power also. Legislative power is vested in con- 
gress; but the house of representatives, through its control 
of the public purse, and the senate through its power of 
advice and consent in the matter of appointments and 
treaties, both act as checks upon the executive. Judicial 
power is vested in the supreme court and in such inferior 
courts as may be established; but through the power of 
the supreme court to pass upon the constitutionality of any 
law, the judicial department acts as a check upon the legis- 
lature. At the same time the greatest care was taken to 
make each department as independent as possible of the 
other two — in the case of the judiciary by making their 
tenure of office as secure as possible; in the case of the 
other two, by making them responsible, not to each other, 
but directly or indirectly to the people. 



THE CONSTITUTION 95 

116. Stability of the Constitution. Contrary to the ex- 
pectation of many at the time of its adoption, the constitu- 
tion has proved itself extremely stable. The process of 
amendment provided by the instrument, while not so diffi- 
cult as to be impracticable, as was the case with the articles 
of confederation, has nevertheless proved too cumbersome 
to be resorted to unadvisedly. As a result the constitution 
has been but little changed by amendment. Of the fifteen 
amendments that have been passed, the first ten, often 
called the bill of rights, w T ere passed at one time and might 
almost be counted as one; while the last three also, relating 
as they do to the same subject and growing out of the civil 
war, are really a unit; so that it is perhaps not inaccurate to 
say that the constitution has really been amended but four 
times. It has undergone development, but it has been prin- 
cipally through the process of judicial interpretation and 
through custom. Mr. Bryce has said of it, "The constitu- 
tion as a whole has stood and stands unshaken. The scales 
of power have continued to hang fairly even. The Presi- 
dent has not corrupted and enslaved Congress; Congress 
has not paralyzed and cowed the President. . . . Neither 
the legislature nor the executive has for a moment threat- 
ened the liberties of the people. The States have not broken 
up the Union and the Union has not absorbed the States. 
No wonder that the Americans are proud of an instrument 
under which this great result has been attained, which has 
passed unscathed through the furnace of civil war, which 
has been found capable of embracing a body of common- 
wealths more than three times as numerous, and with 
twenty-fold the population of the original States, which has 
cultivated the political intelligence of the masses to a point 



9 6 CIVIL GOVERNMENT 

reached in no other country, which has fostered and been 
found compatible with a larger measure of local self-gov- 
ernment than has existed elsewhere." 

Library References. — Ashley, §§121-138; Harrison, Chap. I; Macy, 
Chaps. VI, XXXV; Dawes, pp. 46-59, 406-418; Bryce, Vol. I, Chaps. II- 
IV; Wilson, §§ 869-884; Hinsdale, Chaps. XII-XV; Madison, Journal of 
Constitutional Convention; Federalist; Johnston, pp. 12-14; Curtis, Vol. II, 
Chaps. I-II; Channing, pp. 259-270; Fiske, American Political Ideas, pp. 
57-100; Wilson, Congressional Government, pp. 1-57; Hart, pp. 133-135; 
Lalor, Article on Constitution of the United States; Woodburn, pp. 58-93. 

QUESTIONS ON THE TEXT 

77. Mention two governmental institutions that are derived 
from England. 

78. Compare the constitution of the United States with the 
English constitution as to (1) origin, (2) form, (3) susceptibility to 
change. 

79. What provisions of the constitution were taken from the 
various state constitutions? 

80. Mention one respect in which the constitution of the United 
States differs from that of England. Compare the powers of par- 
liament and congress. 

81. Distinguish between confederacy and nation. What kind 
of government was that of the continental congress? 

82. Show how the constitution changed the relations "from a 
league of states into a national state." 

83. Into what three departments are the powers of the United 
States government divided, and why is this division made? 

84. What is the source of the powers (1) of the United States 
government, (2) of the state governments? 

85. What was the ordinance of nullification ? Of what doctrine 
was it an expression? How has this question been finally settled? 

86. Give Mr. Gladstone's opinion of the constitution. 

87. Give the substance of Mr. Bryce's statement regarding the 
working of the constitution, 



CHAPTER VIII 
LEGISLATIVE DEPARTMENT: ITS ORGANIZATION 

117. The Two Houses. In the United States, legislative 
power is vested in a congress consisting of two houses, 
called the senate and the house of representatives, the first 
chosen in such a way as to make it representative of the 
states — i.e., representative of the federal idea; the latter 
chosen in such a way as to make it representative of the 
people as a whole — i.e., of the national idea. In the con- 
stitutional convention there was almost unanimous agree- 
ment that the new congress should consist of two houses. 
The failure of the old congress of the confederation with its 
single house, the much more satisfactory experience of the 
states with their bicameral systems, and — most of all, doubt- 
less — the faith of the convention in the efficacy of a system 
of "checks and balances," all tended to secure unanimity 
on this point. It was intended that each house should act 
as a check upon the other, thus preventing over-hasty or 
ill-advised legislation. We have already seen whence the 
names senate and house of representatives were derived, 
and how it came about that the basis of representation in 
the two houses is different (§§ 102 and 109). 

118. Number of Members. In size the two branches of 
the legislature differ greatly, though in neither is the num- 
ber of members a fixed one. The house of representatives, 
sometimes called the lower house, often simply the house, 
is by far the more numerous. The constitution provides 

97 



98 CIVIL GOVERNMENT 

that the number of representatives shall not exceed one for 
every thirty thousand of such population as is entitled to 
representation, though every state is to have at least one 
representative; and in order to apportion the representa- 
tives, provision was made for a decennial census, the first 
enumeration to be made within three years after the first 
meeting of congress. Until the first enumeration should 
be made, the constitution arbitrarily apportioned the repre- 
sentatives among the states, making the whole number sixty- 
five. So long as slavery existed, the population entitled 
to representation consisted of all free persons, including 
those bound to a term of service, and excluding untaxed In- 
dians, together with three-fifths of the slaves. Since the 
passing of the XlVth amendment, it has consisted of the 
whole number of persons in each state except untaxed In- 
dians. Since the meeting of the first congress the number of 
members in the house has been increased with the increase 
of population, though not in direct proportion. After every 
decennial census congress determines what shall be the whole 
number of representatives, and they are then apportioned 
among the states according to population. By act of con- 
gress approved January, 1901, to take effect March 4, 1903, 
the number of representatives was fixed at 386, which is 
in the ratio of one representative to about 200,000 of the 
population. In the first house the ratio was one for about 
every 61,000. The criticism is sometimes made that the 
house has become so large as to be unwieldy, but it is still 
small in comparison with the lower houses of the leading 
European legislatures. In England the corresponding body 
consists of 670 members; in France of 591; in Germany 
of 397. If a new state is admitted after an apportionment 



LEGISLATIVE DEPARTMENT 99 

act is passed, the new members are additional to those pro- 
vided for by the act. Besides the regular representatives 
from the states, there are in the house also delegates from 
the territories, each organized territory being entitled to one. 
These delegates have the privilege of speaking on any 
question affecting their territories, but are allowed no vote. 
Since representation in the senate is based on the states 
and divided among all the states equally, each state being 
entitled to two senators, that body also increases in size 
with the admission of every new state. Composed at first 
of twenty-six members, it now numbers ninety. 

119. The Suffrage. The members of the house of repre- 
sentatives are chosen directly by the people in each state. 
At the time of the constitutional convention the limitations 
upon the suffrage differed very considerably in the different 
states, and it seemed wisest to leave to the states the matter 
of deciding who should have the right to vote for represen- 
tatives; consequently, it was provided that the electors (those 
possessing the right to vote) in each state should have the 
qualifications necessary for electors of the most numerous 
branch of the state legislature. By the passage of the 
XlVth and XVth amendments in 1868 and 1870, how- 
ever, some restrictions were placed upon this unqualified 
right of the states to fix the limitations of the suffrage. By 
the XVth amendment they are forbidden to abridge the 
right to vote "on account of race, color, or previous con- 
dition of servitude;" while the XlVth brings strong press- 
ure to bear in favor of manhood suffrage by providing 
for a reduction of the basis of representation in propor- 
tion as any state abridges the franchise of any male citizen 
twenty-one years of age except for participation in crime. 

LofC. 



ioo CIVIL GOVERNMENT 

In spite of these restrictions, however, it is possible for the 
electoral franchise by which the members of the national 
house of representatives are chosen, to differ widely in the 
different states. As a matter of fact, the differences are 
small. There is practically manhood, suffrage everywhere, 
except for the disqualification in some states of paupers, 
illiterates and other defective or delinquent classes. 

120. Qualifications of Representatives. The qualifications 
fixed by the constitution for members of the house of rep- 
resentatives are three: (i) the person chosen must be at least 
twenty- five years of age; (2) he must have been seven 
years a citizen of the United States; and (3) he must when 
elected be an inhabitant of the state from which he is chosen. 
But universal custom and, in some states, state law have 
placed a further restriction upon the choice by requiring 
the representative to be also a resident of the congressional 
district from which he is chosen. The advisability of this 
additional qualification has been questioned, especially by 
European critics of our political institutions. In Europe, 
where this local restriction does not generally exist, it has 
been found that representatives of one district elected from 
some other are not less well informed as to local needs or 
less zealous in behalf of their constituents than those chosen 
from their own districts. It is argued against the system 
that it tends to lower the general level of ability in the legis- 
lative body, on the one hand by returning men of inferior 
ability from some districts where there is little ability or 
where the best talent does not seek an outlet in politics; on 
the other by barring out men of superior ability in districts, 
such as those of the large cities in the older states, where 
such men are more numerous than the places to be filled. 



LEGISLATIVE DEPARTMENT 101 

In spite of criticism, however, there is a deeply rooted public 
sentiment in favor of the restriction. Besides the feeling 
of local pride, which forbids the supposition that a better 
candidate could be found outside the district than within it, 
and the less commendable desire to reward local political ser- 
vices with such offices, there is a profound belief that no one 
can understand local needs or be so zealous in behalf of local 
interests as one residing in the community represented. 

121. Exclusion of Members-Elect. These are the only 
restrictions imposed upon the people in the choice of their 
representatives; but it does not necessarily follow that every 
representative chosen by a constituency will be seated in 
the national legislature. The house has more than once 
asserted its right to exclude members-elect for treason or 
other crime. During the civil war an act was passed re- 
quiring of persons elected to office a test oath that debarred 
great numbers; and congress has always maintained its 
right to exclude members-elect in case something in their 
character or careers is strongly condemned by public sen- 
timent. It was on this principle that the house of repre- 
sentatives acted a few years ago in excluding Brigham H. 
Roberts of Utah as "a notorious, defiant, demoralizing, and 
audacious violator of State and Federal law relating to 
polygamy and its attendant crimes." 1 

122. Length of Term. While the term of a representative 
is fixed by the constitution at two years, reelection is pos- 
sible as often as may be pleasing to the constituents. As a 
matter of fact, however, it is not the general practice, except 
perhaps in some of the older eastern states, to return the 
same man term after term. In order to be even moder- 

1 Excluded Jan. 25, 1900. 



102 CIVIL GOVERNMENT 

ately sure of retaining his seat through two or three succes- 
sive terms, a representative must usually be either a very 
adroit politician or an eminent party leader. The result 
is that a congressman's whole period of service in the house 
is not likely on the average to be more than four years; 
and that at each biennial election the composition of the 
house is greatly changed, about half the members being 
new men. This, it is urged on the one hand, is an advan- 
tage in a number of ways: rotation in office helps to keep 
our institutions democratic; the biennial elections tend to 
keep the people alive to the political questions of the day; 
the shortness of the term assists in preventing any exten- 
sive political jobbery; and the occurrence of an election in 
the middle of the president's term acts as a check upon 
him by giving the people, if they wish it, an opportunity to 
express disapproval of his policy by returning a house politi- 
cally opposed to him. On the other hand, there is at least 
one unquestionable objection to the shortness of the term: 
it practically obliges the man who is ambitious for a political 
career to devote his best energy to the securing of his re- 
election rather than to the serious study of legislative prob- 
lems. Mr. Bryce says of this: "No habit could more effec- 
tually discourage noble ambition or check the growth of 
a class of accomplished statesmen. There are few walks 
of life in which experience counts for more than it does in 
parlimentary politics. It is an education in itself, an educa- 
tion in which the quick-witted Western American would 
make rapid progress were he suffered to remain long enough 
at Washington. At present he is not suffered for . . . nearly 
one-half of each successive house consists of new men, 
while the old members are too much harassed by the trouble 



LEGISLATIVE DEPARTMENT 103 

of procuring their re-election to have time or motive for 
the serious study of political problems." 

123. Elections. The times, places, and manner of hold- 
ing elections for members of congress are left by the con- 
stitution to the state legislatures, though the right is reserved 
to congress to alter such regulations of the state legislatures 
at any time, " except as to the place of choosing senators." 
Since the adoption of the constitution, congress has thought 
best to fix the time for and define the manner of holding 
these elections. For the election of representatives the 
time prescribed is the first Tuesday after the first Monday 
in November of the even-numbered years. As to the manner 
of election the practice of the states at first varied, some 
electing their members by districts, others electing them 
on a common ticket for the whole state. This last method, 
often called election by general ticket or "at large," usually 
resulted in giving to the party that carried the state the whole 
number of representatives, though the defeated party might 
have been almost equal in numbers. Since 1842 the states 
have been required to elect representatives by districts only, 
though under certain conditions they are given permission 
to elect by general ticket. The division of the state into 
districts is left to the state legislatures. 

124. Gerrymandering. This power of marking out the 
congressional districts has given the state legislatures a very 
important part in determining the composition of the house 
by means of the process known as "gerrymandering," nor 
have the restrictions placed upon the states greatly dimin- 
ished that influence. The process of gerrymandering con- 
sists in laying out the districts in such a way as to secure 
for the political party making the division a majority in 



104 CIVIL GOVERNMENT 

as many districts as possible. Thus, where a district is 
in any case hopelessly lost to the gerrymandering party, 
district lines are manipulated in such a way as to throw 
into it as large a proportion of political opponents as possible ; 
where a district is doubtful, it is strengthened by adding to 
it some town or section strongly favorable. In interpret- 
ing the act of 1872, by which it was required that the ter- 
ritory composing the district should be compact and con- 
tiguous, any territory has been regarded as contiguous that 
touches the district at a single point; and as a result some 
districts have been .created quite as absurd in contour as 
that which first gave rise to the term "gerrymander." 1 
In Missouri, in order to throw as great a number of negro 
voters as possible into a single district, one was created that 
measured along its windings a greater length than the 
state itself. Other absurd examples are the "shoe-string" 
district of Mississippi, 500 miles long by 40 broad; the 
"dumb-bell" district of Pennsylvania; and the "monkey- 
wrench" district of Iowa. 

125. Representatives at Large. If, after a census, the num- 
ber of representatives in any state has been increased and the 
legislature fails to redistrict the state before the next congres- 
sional election, the additional representatives are chosen on a 
general ticket and are known as "representatives at large." 

1 The name is said to have had its origin in an incident connected with 
the redistricting of Massachusetts by the republican legislature in 1811 
while Elbridge Gerry was governor. In the redistribution one of the dis- 
tricts had assumed a somewhat lizard-like form. This was shown on a 
map hanging over the desk of the editor of an opposition paper. The 
painter, Gilbert Stuart, happening to observe the figure, promptly added 
head, wings and claws, remarking, "That will do for a salamander." "Bet- 
ter say a Gerrymander," replied the editor, and the word passed into the 
language. 



LEGISLATIVE DEPARTMENT 105 

126. Vacancies. In case a member wishes to resign for 
any reason, he does so by letter to the governor of his state. 
If a seat becomes vacant by the death, resignation or expul- 
sion of a member, the governor issues a writ for a new 
election. 

127. Election Expenses. There are always, of course, 
expenses connected with an election — some necessary offi- 
cial expenses, for clerks, polling booths, etc.; some perhaps 
not absolutely necessary yet regarded as quite legitimate; 
some entirely illegitimate. The official expenses are paid 
out of the public treasury. The total expense varies greatly 
from district to district. In some districts it is very small; 
in other warmly contested districts, especially in large cities, 
it mounts up into the thousands of dollars. It is certain 
that bribery is resorted to more or less frequently, but cir- 
cumstances make proof of the offence so difficult that an 
election is not often contested on that ground. The power 
of deciding contested election cases rests with the house, 
which does not meet until a year after the election. Since 
'such a contest is likely to drag over the greater part of the 
first session, there is a general disinclination to enter upon it, 
the shortness of the term making it seem hardly worth while. 

128. The House : Officers. The first business before a new 
congress is naturally the business of organization and the 
election of officers. In the house these officers are speaker, 
clerk, sergeant-at-arms, doorkeeper, postmaster, and chap- 
lain, only the first of whom is a member of the house. The 
term of the speaker expires with the congress that elected 
him; the other officers hold over until their successors are 
chosen. In the organization of a new house the clerk of 
the preceding one plays an important part. It is his busi- 



106 CIVIL GOVERNMENT 

ness to make up the roll of the new house from the certified 
returns of the states; and in doing this he is obliged to en- 
roll all who hold regular certificates, even though a question 
of their validity has been raised. Thus, even those whose 
seats are contested take part in the organization of the house. 
Until the house elects a speaker, the clerk of the old house 
also acts as presiding officer, and is expected in his rulings 
to deal fairly with all concerned. In case, as sometimes 
happens, the election of a speaker is more than a formal 
ratification by the house of a choice made in the caucus of 
the majority party, this duty of presiding may make the 
clerk of the house for a time an important figure politically. 
The ordinary duties of the clerk are to keep a record of all 
questions of order that arise, to certify to the passage of 
bills, to keep an account of disbursements, to keep the house 
journal and take charge of its printing. The duties of the 
doorkeeper, postmaster, and chaplain are sufficiently indi- 
cated by their names. To the sergeant-at-arms is intrusted 
the task of keeping order in the house. He also acts as 
paymaster of the house, paying members and delegates their 
salaries and mileage. The speaker is the most important 
officer in the house. Indeed, he has been called "the second 
if not the first political figure in the United States." Since his 
special duties and powers will be described in another connec- 
tion (§§ 209-211), it will suffice to say here that he performs 
in the house the usual duties of a presiding officer, appoints 
all committees including the regular standing committees, 
and acts as chairman when the house resolves itself into a 
"committee of the whole," i.e., when it changes itself from 
a legislative to a deliberative assembly in order to consider 
particular questions before taking legislative action upon them. 



LEGISLATIVE DEPARTMENT 107 

129. Method of Choice. Nominally the officers of the 
house are chosen directly by the house; actually they have 
already been chosen before the house takes action in the 
matter. The real choice is made at a caucus of the majority 
party, where a list of the officers is agreed upon. When 
these nominations are made in the house, the party votes 
solidly for them and the election is, of course, assured. To 
be sure, the majority could, if it chose, reject the decision of 
the caucus; but it does not choose, so that the election by 
the house virtually amounts to a mere formal ratification 
of the choice made in the caucus. 

130. The Senate : Its Origin and Character. Turning now 
to the senate, we find ourselves dealing with a body in some 
respects very different in character from the house of rep- 
resentatives. It is often supposed that the senate had its 
origin in the necessity for conciliating the small states. As 
we have already seen, this is an erroneous idea (§ 109). From 
the first there was practically unanimous agreement in the 
constitutional convention that the national legislature should 
consist of two houses. Some sort of senate we should have 
had in any case. When the necessity for conciliating the 
small states arose out of the question as to what should be 
the basis of representation in the national legislature, it did 
nothing but determine the jorm of the senate. It made it 
representative of the federal idea — the idea that this is a 
union of states, which is just as true and just as important 
as the national idea — the idea that the people of the United 
States collectively form a single nation, one and indivisible. 
Ever since the convention the provision of the constitution 
giving the states equal representation in the senate has found 
opponents. It is argued that it is not fair, not in keeping 



108 CIVIL GOVERNMENT 

with democratic institutions, that Nevada, for instance, with 
her 42,325 inhabitants should have as much legislative power 
in the senate as New York with her 7,268,01 2. 1 The criti- 
cism overlooks the fact that the framers of our constitution 
did not intend to form a simple democratic government for 
a consolidated state. They were building a federal state. 
Certainly, aside from the fact that for the framers of the con- 
stitution it was a practical necessity, the plan of equal repre- 
sentation of the states in the senate offers advantages. It 
gives a real justification for the division of the legislature 
into two houses by providing a distinctly different basis of 
representation, and it forms a link between the state and the 
national governments. 

131. The Senate : Constitutional Provisions. The consti- 
tutional provisions determining the character and organiza- 
tion of the senate may be summed up very briefly. The 
significance of some of them will have to be considered more 
at length. According to the constitution the senate is to be 
composed of two senators from each state, chosen by the 
state legislature for a term of six years. Any person so 
chosen must have attained the age of thirty years; must 
have been for nine years a citizen of the United States; 
and must, when elected, be an inhabitant of the state 
from which he is chosen. It was provided that after the 
first election the senators were to be divided as equally 
as possible into three classes, the first to retain their seats 
for two years, the second for four, and the third for six, so 
that one-third of the senate might be chosen every sec- 
ond year. Vacancies occurring during the recess of the 
state legislature are temporarily filled by the executive of 

1 Census of 1900. 



LEGISLATIVE DEPARTMENT 109 

the state until the next meeting of the state legislature. 
The vice-president of the United States is to be president of 
the senate, but has no vote except in case of a tie. The 
senate is to elect also a president pro tempore and such 
other officers as it chooses. Every senator is to have a vote, 
i.e., the vote in the senate is to be by individuals, not by 
states. 

132. The Senate: Objects Aimed At. It is interesting to 
note how these provisions have determined the character of 
the senate, sometimes resulting as the framers of the con- 
stitution intended that they should, sometimes giving most 
unexpected results. Their main object was to create in the 
senate a dignified, conservative body possessed of practical 
experience and superior intellectual ability, which was to act 
as a check upon the " democratic recklessness " of the house 
on the one hand, and the "monarchical tendencies" of the 
executive on the other. It was hoped that the higher age 
qualification . would result in sending to the senate men of 
wider information and greater stability of character than that 
ordinarily possessed by members of the house; while the in- 
direct manner of election and the length of the term were 
intended to secure greater independence of action than was 
possible or desirable in the lower house. In order that it 
might be an effective check upon the executive, it was deemed 
necessary that the senate should be made to share to a cer- 
tain extent executive power. Hence its comparatively small 
size. This, too, was the primary reason for the division of 
the senate into classes. One of its chief executive functions 
is to share in the management of foreign affairs, a function 
that can be satisfactorily performed only by a body possess- 
ing sufficient permanency to assure a certain continuity of 



no CIVIL GOVERNMENT 

policy. By retiring only one-third of the senate every two 
years such permanency is secured. A "new house" is cre- 
ated every second year; a "new senate" never. 

133. Election of Senators. Of those clauses of the con- 
stitution dealing with the senate, the one providing for a 
method of electing the senators is perhaps the most con- 
spicuous failure. The constitution provided simply that 
they were to be elected by the state legislatures, the time and 
manner of holding such elections being left to the decision of 
the states, though the right was reserved to congress "to 
make or alter such regulations by law" at any time. Up to 
1866 congress took no action in the matter. Then a federal 
law was passed providing the present uniform method of 
election. This requires that each house shall first vote sep- 
arately for the election of a senator. If the choice of both 
houses does not fall upon the same person, they are to meet 
in joint session and take a viva voce vote, a majority of each 
house being present and a majority of the whole legislature 
being required for election. If there is still no election, the 
joint assembly must meet on each succeeding day and take 
at least one vote until a choice is made. These provisions 
have so often resulted in abuse of various kinds (the sena- 
torial deadlock, the breaking of a quorum, etc.) that some 
agitation has arisen in favor of direct election of senators, 
and a number of the state legislatures have formally recorded 
their approval of the plan. Three times a resolution pro- 
viding for an amendment to the constitution to procure this 
result has passed the house, but each time it has failed in 
the senate. 

134. Objections to Election by State Legislatures. The 
objections urged against the election of United States sena- 



LEGISLATIVE DEPARTMENT in 

tors by the state legislatures are by no means trifling. The 
tendency is unquestionably to carry the strife of national 
parties into the state legislatures and to make national party 
interests paramount there to the detriment of state interests. 
This method of election has been charged "with the deteri- 
oration of state legislatures, with the growth of machine rule, 
with the purchasability of Senatorships, and with the decline 
of the United States itself." Whether the constitutional 
amendment necessary in order to change to the method of 
popular election could ever be brought about, is very ques- 
tionable. In any case it would be a matter of great diffi- 
culty. What seems to be happening is that the actual 
method of election is coming to be more or less direct, though 
it remains still nominally indirect. 

135. Present Practice. As a matter of fact, the election of 
senators, though it is by no means actually direct election 
by the people, is already only nominally election by the legis- 
lature. The real choice is made in the caucus of the majority 
party in the state legislature before the legislature meets. It 
now frequently happens that party conventions in the various 
states nominate their candidates for senator, and these nom- 
inations are subsequently ratified by the party majority in 
the legislature. This brings the choice one degree nearer to 
the people than the present method, and might, if it became 
fixed and general, result in nearly direct election, provided 
the people were able through a good primary nominating 
system to control the nominations. Otherwise it would 
simply mean election through a clique of party bosses. An- 
other method is illustrated by the practice of the state of 
Nebraska. In that state, voters when voting for members 
of the state legislature are permitted "to express by ballot 



112 CIVIL GOVERNMENT 

their preference for some person for the office of United 
States Senator. The votes cast for such candidates shall be 
canvassed and returned in the same manner as for State 
officers." If such a system as this should prevail, any party 
could propose a qualified candidate for senator and secure 
an expression of popular approval or disapproval throughout 
the state. Of course the legislature would not be bound by 
law to elect a candidate who might be indicated in this way 
as the people's choice; but the political power of any unmis- 
takable expression of popular opinion is very great, and 
doubtless such an expression would soon come to be ratified 
in the state legislature. 

136. The Senate : Its Officers. The officers of the senate 
except the president, are chosen by that body. They are 
president, president pro tempore, secretary, chief clerk, ser- 
geant-at-arms, chaplain, postmaster, librarian, and door- 
keeper. None of these except the president pro tempore is 
a member of the senate. As we have already seen (§131), 
the vice-president of the United States is ex officio president of 
the senate. He cannot vote except in case of a tie, nor does 
he appoint the committees; they are chosen by the senate. 
The president pro tempore, on the other hand, has a vote on 
any question, but cannot cast the deciding vote in case of a 
tie. The vice-president having taken the oath of office at 
his inauguration, takes up his duties as presiding officer on 
the first day of the session and administers the oath of office 
to the new senators. 

137. Privileges of Members of Congress. The members 
of both houses are by the constitution granted certain priv- 
ileges on the one hand and subjected to certain restrictions 
on the other. Except for treason, felony, or breach of the 



LEGISLATIVE DEPARTMENT 113 

peace they are privileged from arrest while attending ses- 
sions of the legislature or while going to or coming from such 
meetings; and they cannot be subjected to question outside 
the legislature for any speech or debate uttered there. The 
object of taking this extraordinary precaution to secure free- 
dom of person and freedom of speech to a member of con- 
gress is, of course, to prevent his district from being actually 
deprived of its representation by means of a false charge 
against him, or practically deprived of it by muzzling his 
utterances. Besides thus securing them special privileges, 
the constitution provides that congressmen shall be paid for 
their services out of the federal treasury. The question as 
to whether salaries should be paid to the national legislators 
was warmly discussed in the constitutional convention. Eng- 
lish practice was opposed to it; the practice of the states 
favored it. The convention followed the example set by 
the states, 1 partly in the belief that men of ability might thus 
be enabled to enter the public service who would otherwise 
be debarred by poverty; partly with a feeling that the 
salary might be a means of making positions in the na- 
tional legislature attractive enough to compete with those of 
the state legislatures. The constitution left the amount of 
the salary to be determined by law, and it has been changed 
several times. Both senators and representatives receive 
$5,000 per year, with 20 cents per mile for travelling expenses 
to and from Washington, and $125 for stationery. The 
speaker of the house receives $8,000 per year and mileage; 
the president pro tempore the same, while acting as president 
of the senate. 

1 Bryce presents the arguments on the other side. See Vol. I, pp. 194- 
195 and note. 



H4 CIVIL GOVERNMENT 

138. Disabilities. On the other hand, members of the fed- 
eral legislature are disqualified for appointment to "any 
civil office under the authority of the United States which 
shall have been created, or the emoluments whereof shall 
have been increased" during their term of service; and 
United States officials cannot become members of the na- 
tional legislature and at the same time continue in office. 
The object of the first part of this provision was to remove a 
possible temptation on the part of members to create offices 
or increase the salaries attaching to already existing offices 
for the sake of profiting by them personally. The last part 
is another example of concession made to appease state 
jealousy, the states fearing that the admission of United 
States officials to seats in congress would give the national 
government undue influence over the states. 

139. Sessions of Congress. The time fixed by the consti- 
tution for the meeting of congress is the first Monday in 
December. As we have already noted (§ 123), the elec- 
tions for members of the house fall in November of the even- 
numbered years, but the house elected at that time does not 
meet until December of the following year. There are two 
sessions of each congress : the first or long session, beginning 
the first Monday in December a year after election and con- 
tinuing usually until midsummer, though it would be pos- 
sible for it to continue until December; and the second or 
short session, beginning likewise in December one year after 
the opening of the first session and continuing until the 4th 
of March following, when the congress expires. Thus it 
will be seen that one session of each congress is held after its 
successor has been elected, and that it is possible for the ex- 
piring congress to pass legislation of which the people have 



LEGISLATIVE DEPARTMENT 115 

already expressed disapproval by electing a house of a dif- 
ferent political complexion. Bills may carry over from the 
long to the short session in the house and perish with the 
arrival of March 4th, but senate bills do not die by the pass- 
ing of time. The daily sessions last usually from noon until 
four or six o'clock, but may be, and often are, prolonged 
until late at night, particularly toward the end of the session. 
One congress is two years in length and has two sessions. 

140. Quorum. It is provided by the constitution that a 
majority of each house shall constitute a quorum, but a 
smaller number may adjourn from day to day and may com- 
pel the attendance of absent members. There has been 
some discussion as to whether "a majority of each house" 
means a majority of the whole number that might possibly 
be elected or a majority of those who are actually members 
— in other words, whether vacancies should be counted. 
The view has generally been held that they should not. In 
case there is no quorum, and fifteen members and the speaker 
are present, they may proceed to compel the attendance of 
absentees by closing the doors of the house, calling the roll, 
noting the absent members, and then by a majority vote of 
those present authorizing the sergeant-at-arms to arrest and 
bring into the house such members as have no sufficient ex- 
cuse for absence. 

141. Procedure. Each house is given the power of de- 
termining its own rules of procedure and of enforcing them by 
punishing disorderly members even to the extent of expelling 
them, but the concurrence of two-thirds of the house is ne- 
cessary for expulsion. In order that the public may be kept 
informed of the proceedings of congress, each house is re- 
quired to keep a journal and to publish it from time to time, 



n6 CIVIL GOVERNMENT 

"excepting such parts as may in their judgment require 
secrecy." The debates, however, are published daily in the 
Congressional Record, not in the journal. 

142. Adjournment. In the matter of adjournment the con- 
stitution provides that "Neither house, during the session of 
congress, shall, without the consent of the other, adjourn for 
more than three days, nor to any other place than that in 
which the two houses shall be sitting." This provision is 
designed to prevent the blocking of legislation by the ad 1 
journment of one of the houses. If the two houses can 
come to no agreement as to the time of adjournment, the 
president may adjourn them to such time as he deems 
proper. 

143. Comparison with Congress of the Confederation. We 
have already noted the significance of some of the differences 
between the congress created by the articles of confederation 
and that created by the constitution. It may be well here to 
summarize briefly the chief differences in the organization of 
the two bodies. 

(i) The congress of the confederation consisted of a single 
house ; that created by the constitution consists of two houses. 

(2) Under the confederation each state was entitled to rep- 
resentation through delegates ranging from two to seven in 
number; under the constitution members are apportioned 
according to population in the house ; by states in the senate, 
two for each, state. 

(3) Under the confederation the terms of delegates were 
one year in length; under the constitution representatives 
serve two years, senators six. 

(4) Under the confederation delegates were chosen from 
each state as the legislature of the state might direct; under 



LEGISLATIVE DEPARTMENT 117 

the constitution representatives are elected by the people, 
senators by the state legislatures. 

(5) Under the confederation each state had but a single 
vote no matter what the number of delegates ; under the con- 
stitution each senator and representative has his individual 
vote (i.e., Ohio 23, New York 39, etc.). 

(6) Under the confederation the salaries of delegates were 
paid by the states; under the constitution they are paid by 
the United States. 

Library References. — Ashley, §§ 255-259, 264-269, 277-282; Macy, 
Chap. XXXIII, pp. 211-217; Macy, First Lessons, Chap. XVII; Dawes, 
Chap. II, pp. 119-127, 139-141; Bryce, Vol. I, Chaps. X, XII-XIII, XIX; 
Hinsdale, Chaps. XVII-XX, XXIII; Wilson, §§ 1054-1061, 1064-1073; 
Federalist; Madison, Journal of Convention; Fiske, pp. 220-228; Harri- 
son, Chaps. II-III; Curtis, Vol. I, Chaps. XXII-XXIII, XXV; Wilson, 
Congressional Government, pp. 219-230; Dole, Chap. XII; Alton, Chaps. 
II-III, VIII; Lalor, Articles on Gerrymander, Senate, House of Representa- 
tives; Woodburn, pp. 196—210, 214—222, 230-231, 239-243, 246—255. 

QUESTIONS ON THE TEXT 

88. Describe the legislative department of the national govern- 
ment. 

89. Why was it thought best to have congress consist of two 
houses? What are the advantages of two branches in congress? 

90. Give in substance the provision of the constitution in refer- 
ence to apportionment of representatives. 

91. How is the number of members composing the house of 
representatives determined? State the number composing the 
present house. (See latest edition of Tribune or World Almanac.) 
When may this number be increased ? 

92. What state has the largest number of members in the house 
of representatives? Why? 

93. How are members of the lower house elected? 

94. State the qualifications required for membership in the 
house of representatives and explain the importance of two of these 
requirements. 



Ii8 CIVIL GOVERNMENT 

95. How long is the term of office of a member of the house 
of representatives ? 

96. How are vacancies in the office of representative filled? 

97. Define bribery. 

98. Mention the principal duties of the speaker of the house 
of representatives. 

99. State the basis of representation in (i) the senate; (2) the 
house of representatives. Why this difference ? 

100. State the conditions of eligibility to the office of senator. 

101. Give with respect to a senator (1) length of term; (2) min- 
imum age; (3) salary; (4) duties. 

102. One-third of the members of the senate are chosen once in 
two years. Give reasons for the gradual change in membership. 

103. Explain why the constitution provides that the term of a 
member of the house of representatives shall be shorter than the 
term of a senator. 

104. How are senators elected? What is meant by a joint 
ballot in the legislature? Give the principal arguments for and 
against the election of senators by direct vote of the people. 

105. State how the president pro tempore of the senate is chosen, 
and mention one duty. 

106. How do the two houses of congress differ as to the way in 
which the presiding officer is chosen ? 

107. Under what circumstances are the presiding officers in 
congress entitled to vote? 

108. Mention two privileges conferred by the constitution on 
senators and representatives in congress, and give a reason for 
each provision. 

109. What privilege have members of congress as to arrest, 
and why is this privilege given them? 

110. How often does congress meet? 

111. Define quorum; majority; plurality; what is meant by 
the " 49th Congress " ? 

112. In what respects did congress under the confederation 
differ from congress under the constitution ? 



CHAPTER IX 

LEGISLATIVE DEPARTMENT: ITS POWERS AND 
LIMITATIONS 

144. The Taxing Power. When the makers of our con- 
stitution in drafting the document came to assign powers to 
the congress for which they had provided, they dealt first 
with the powers of congress touching the matter of money, 
and they placed at the head of the list the power "to lay and 
collect taxes, duties, imposts, and excises." Experience un- 
der the articles of confederation had taught them the abso- 
lute necessity of placing the power of taxation in the hands 
of the central government, if it were to continue to exist. 
They had learned that no government can be in any true 
sense a government, that it cannot even continue to be, 
unless it has the power of securing the means for its own 
continuance. This power is to a government what the power 
of securing food is to an individual of the animal world. 
However highly endowed in other respects, if it lacks this, 
it must soon succumb. The power of taxation is the ulti- 
mate means through which government accomplishes the 
objects for which it exists. This the framers of the consti- 
tution recognized; for in clothing congress with this power 
they added that it was in order that it might "pay the debts 
and provide for the common defence and general welfare of 
the United States." 

145. Taxes: Classification. What, then, are these "taxes, 
duties, imposts, and excises" that congress is empowered to 

119 



120 CIVIL GOVERNMENT 

lay and collect? How do they differ from each other and 
how are they laid and collected? Tax is the general name 
for money demanded by government for public purposes 
from those under its authority. Duties, imposts, and ex- 
cises are all taxes. Taxes are divided into two general 
classes — direct and indirect. A tax is direct when the 
burden of it is borne by the person from whom government 
demands it, e.g., poll-taxes, taxes on land or property. In- 
direct taxes "are those which are demanded from one per- 
son in the expectation and intention that he shall indemnify 
himself at the expense of another," i.e., they are levied on 
goods before they reach the person who uses them and are 
ultimately paid by him as a part of the market price, not as 
a tax. Duties, imposts, and excises are indirect taxes. In 
other words, the indirect tax can be shifted, the direct cannot. 
At present in the United States direct taxes are levied only 
by state and municipal governments, the revenue for the 
general government being derived from indirect taxes only; 
but congress has at various times levied direct taxes. The 
reason for the discontinuance of direct taxation by the gen- 
eral government is that under present constitutional re- 
quirements it works injustice to some sections. Congress 
is forbidden by the constitution to lay any direct tax except 
in proportion to. population. If, then, one state has twice as 
many inhabitants as another, it must pay twice as large a 
share of any direct tax that may be levied. That seems 
just at first sight; but as a matter of fact, the state that has 
twice as large a population as another, has in general more 
than twice as much wealth, with a corresponding greater 
ability to pay, so that the tax falls more heavily on the less 
densely populated state. 



LEGISLATIVE DEPARTMENT 121 

146. Indirect Taxes: Duties. It is, then, in indirect taxes 
that we are chiefly interested here. Duties (also called 
customs) are taxes laid upon goods exported or imported. 
The term " imposts " is by some writers restricted to duties 
upon imports, but the distinction is not generally made. 
Since congress is forbidden by the constitution to tax 
articles exported from any state, duties in the United 
States are always import duties. They are of two kinds — 
specific and ad valorem. Specific duties are fixed amounts 
of taxation laid upon the unit of measurement of the 
article taxed, i.e., the duty is chargeable by quantity, 
weight, or number. An ad valorem duty is one levied at 
a certain rate percent on the value of the commodity 
taxed, i.e., the duty is chargeable according to the value 
of the article. Sometimes both a specific and an ad valorem 
duty are levied upon the same article. 

147. The Tariff. In order that duties may be imposed 
as it desires, the government sees to it that a list of goods 
with the duties to be paid on them is made out and placed 
in the hands of the proper officials. Such a list is called 
a tariff or a tariff schedule. The term "tariff" is applied 
also to the duties imposed according to such a list, i.e., to 
the resulting revenue, as well as to a law regulating im- 
port duties. Tariff questions have played a very important 
part in the history of the United States, becoming at times 
the main point at issue between the two great political 
parties. Such questions arise out of differences of opinion 
as to what should be the purpose of government in impos- 
ing duties. When a duty is laid upon an imported article 
the importer simply increases the price of it sufficiently 
to indemnify himself for the amount paid to the govern- 



122 CIVIL GOVERNMENT 

merit. 1 Thus the price may be increased to such an extent 
that, if the article can be produced in this country at all, it will 
be cheaper to produce it here than to buy it abroad. In this 
way a new industry may be created, or an existing one that 
was in danger of being forced out of existence may be enabled 
to continue. This policy of creating or fostering home indus- 
tries by means of the imposition of duties is known as the 
policy of protection, and those who believe that it is the duty, 
of government to maintain such a policy are called protection- 
ists. Their opponents, the so-called free-traders, do not gen- 
erally insist upon a policy of absolute free trade. They admit 
that congress has the right to impose duties, but insist that 
they should be for the purpose of producing revenue only. 

148. Excises. The other kind of taxes through which the 
government obtains revenue for its support, is the kind 
known as excises. These are taxes levied upon the con- 
sumption, sale or manufacture of commodities within the 
country. The revenue resulting from them is known as 
" internal revenue." Liquors and tobacco are the commod- 
ities most commonly subjected to this kind of taxation, 
but are by no means the only ones. When it became ne- 
cessary, in order to pay the expenses of the Spanish- Ameri- 
can war, for the government to secure additional revenue, 
the list of articles producing internal revenue was greatly 
increased. A tax was levied on bankers and brokers; on 
all sorts of proprietary articles (patent medicines, perfumes, 

1 In theory, a tariff for any purpose is added to the price of the goods 
to the consumer. In fact, however, competition between producers in the 
same country, advantages in transportation and the law of supply and de- 
mand, so modify the theory that in many cases the price to the consumer is 
equal to or less than the foreign price, and in some instances has been less 
than the tariff on the foreign commodity. 



LEGISLATIVE DEPARTMENT 123 

etc.); and on legal documents, such as bank checks, tele- 
graph and telephone messages, express receipts, etc. These 
documentary taxes were like those imposed by the stamp act 
of 1765, and were collected by requiring that a stamp be 
affixed to the documents. 

149. Collection of Taxes. Considerable expense attaches to 
the collection of these federal taxes. In order to collect the 
import duties, the government has designated certain places 
along the coasts and other boundaries to be used as "ports 
of entry." At these places custom-houses are established in 
charge of officials known as "collectors of customs," who, 
with their assistants called "inspectors," are charged with 
the duty of examining goods coming into the country, and 
assessing the duties upon them according to the existing 
tariff rates. At New York, the principal port of entry in 
the United States, nearly two thousand officers and clerks 
are employed in this work. Besides custom-house employees 
the government is obliged to keep in its service also a large 
number of special agents and revenue cutters to prevent 
"smuggling," as the illegal importation of dutiable commod- 
ities is called. The collection of excises is under the super- 
vision of the "commissioner of internal revenue," who is the 
head of one of the bureaus of the treasury department. The 
country is divided into revenue districts, each district in 
charge of a collector, whose duty it is to see that the laws 
are enforced in his district. 

150. The Power to Borrow. Next after the power of tax- 
ation the constitution places in the hands of congress the 
power "to borrow money on the credit of the United States." 
Under normal conditions every well-regulated government is 
able to provide the means for its support by the ordinary 



124 CIVIL GOVERNMENT 

methods of taxation; but emergencies, such as war, requiring 
suddenly increased expenditures, may arise, and the gov- 
ernment must then obtain revenue either by additional tax- 
ation or by borrowing or by both. Of course all money 
borrowed by the government must ultimately be paid by 
taxation, so that the two are closely connected. Borrowing 
only shifts a part of the burden of taxation to a later date, 
to the shoulders of a later generation in most cases. The 
ordinary method employed by government for borrowing 
money is the sale of bonds. A government bond is the 
same in nature as a promissory note given by an individual 
when he borrows money. It is the government's promise 
to pay a certain sum at a certain time with interest. Some- 
times they are made payable at the option of the govern- 
ment after a certain minimum number of years, but fall due 
within a certain maximum number. The United States 
government has borrowed money in other ways than by the 
sale of bonds. It has issued treasury notes. These were 
not really different in character from bonds, but they were 
generally smaller in denomination and ran for shorter pe- 
riods. A third method was that employed by the govern- 
ment in the legal tender acts of civil war times. These 
acts really provided for a forced loan from the people. Con- 
gress authorized the issue of a large number of United States 
notes, which it declared legal tender, i.e., they must be ac- 
cepted in the payment of debt. 

151. Money : Its History. Another important power vested 
in congress is the power of coining money and regulating its 
value and that of foreign coin. This is not the place to 
enter upon a detailed discussion of the origin and history 
of money. It will be sufficient to note that as soon as 



LEGISLATIVE DEPARTMENT 125 

trade begins to develop, men begin to feel the need for 
some convenient medium of exchange, i.e., for some sort 
of money. Different substances have been used for this 
purpose among different peoples at various times; but met- 
als, and particularly gold and silver, have been found most 
convenient and have been generally adopted. At first the 
mere bits of metal were used, their value being determined 
by weighing. Later they were wrought into some sort of 
form, and marked in some way to indicate their weight; in 
other words, they were coined; but this process, being at 
first in private hands, could give neither uniformity nor as- 
surance of value. Thus governments began to assume this 
function of coinage, and the government stamp became a 
pledge of the value of the coin. 

152. Power of Coinage. United States Money. At the 
time of the adoption of the constitution there was no uniform 
monetary system in the country, the money in circulation 
consisting of a variety of foreign coins — Spanish dollars, 
English shillings, etc.; and the need for uniformity had 
become obvious. This was secured by vesting in congress 
alone the power of coining money and regulating its value. 
The actual process of coining money is carried on by the 
government at its mints. Of these the first was established 
at Philadelphia in 1792, and this still remains the principal 
one. Since then mints have been established at San Fran- 
cisco, New Orleans, Carson City, and Denver, though the 
last two are in reality only assay offices (places where the 
metal is tested to determine its purity) , no money having ever 
been coined there. The coinage of money is under the di- 
rection of one of the bureaus of the treasury department 
known as the United States mint. The officer in charge of 



126 CIVIL GOVERNMENT 

this bureau is called the director of the mint. Gold, silver, 
nickel, and bronze are the metals used in coins. At present 
the gold coins issued from the mints of the United States are 
the double eagle, eagle, half eagle, and quarter eagle; the 
silver coins are the dollar, half dollar, quarter dollar, and 
dime; the minor coins are the nickel and one cent piece. 
The gold coins and the silver dollars have been declared 
legal tender for any amount, excepting when the contract 
stipulates otherwise; the smaller silver coins in sums not 
exceeding ten dollars ; the other coins up to twenty- five cents. 
Besides its coins the United States also issues paper money. 
This is made at the bureau of printing and engraving, which, 
like the United States mint, is under the direction of the 
treasury department. The kinds of paper money now in 
circulation are United States notes, silver certificates, gold 
certificates, treasury notes of 1890, and national bank notes. 
153. Counterfeiting. We have seen that the power of con- 
trolling the monetary system of the country was put into the 
hands of congress in order that the people might be able to 
count upon its uniformity and the value and genuineness of 
the money issued. To accomplish this fully it was neces- 
sary that another power should be granted to congress — 
namely, the power "to provide for the punishment of coun- 
terfeiting the securities and current coin of the United States." 
To counterfeit anything is "to make a copy of it without 
authority or right, and with a view to deceive or defraud by 
passing the copy as original or genuine." In the matter of 
money the law regards it as counterfeiting either (1) to man- 
ufacture, (2) to put into circulation, or (3) to have in pos- 
session with intent to circulate forged coins or securities of 
the United States. The forged coins may be of equal weight 



LEGISLATIVE DEPARTMENT 127 

and purity with those of the government; they are none the 
less counterfeit. By the term "securities of the United 
States" is meant the bonds, paper money, etc., mentioned 
above, together with postage and revenue stamps. So im- 
portant is it that the genuineness of the nation's money 
should be beyond suspicion that the penalties provided for 
the offence of counterfeiting are extraordinarily heavy; and 
not only the general government but the several states have 
enacted laws for its punishment. It is also forbidden to 
counterfeit within the United States the coins, notes, bonds, 
etc., of foreign governments. 

154. Power to Regulate Commerce. It will be remem- 
bered that one of the defects of the articles of confederation 
was that they left the control of commerce entirely in the 
hands of the separate states, with what unsatisfactory re- 
sults we have already seen (§ 89). It will be remembered 
also that the constitutional convention itself grew out of the 
attempts made through the Alexandria and Annapolis con- 
ventions to solve these difficult commercial problems; and 
that it was only with the greatest reluctance that some of 
the states finally yielded to the general government the right 
to control their commercial relations with other states and 
with foreign nations. This right was finally yielded, how- 
ever, and congress was given the power "to regulate com- 
merce with foreign nations and among the several states, 
and with the Indian tribes." Commerce with the Indian 
tribes was a matter of considerably more importance in 1787 
than it is now; and its regulation by the general government 
was a practical necessity, if frequent and more or less dis- 
astrous wars were to be avoided. Foreign and interstate 
commerce, on the other hand, have so increased in volume 



128 CIVIL GOVERNMENT 

and the questions involved have become so complex, that it 
would be now more than ever impossible to leave the con- 
trol of them in the hands of the states. 

155. Foreign Commerce. In accordance with the above 
mentioned provision congress has enacted a great variety of 
laws for the protection and facilitation of our commerce. 
When the matter of taxation was under discussion (§ 149), it 
was noted that for the purpose of collecting import duties, 
the government had designated certain places to be used as 
ports of entry and established custom-houses at such places. 
At these ports all vessels are obliged to "clear" and "enter." 
Before a vessel leaves port the master is required to show 
that all harbor duties have been paid and all regulations ob- 
served. Thereupon the collector of customs at that port 
issues a certificate called a "clearance," and the vessel is 
free to sail. Upon arrival in port, "entry" is accomplished 
by the master's reporting to the collector, presenting a state- 
ment of his cargo, and delivering the clearance received at 
his last port, if he has touched at an American port. Con- 
gress has also passed navigation laws defining the nation- 
ality of our ships (i.e., determining what vessels shall be re- 
garded as American), the manner of their registration, the 
privileges that shall be granted them, and the conditions 
under which foreign vessels may engage in the commerce of 
the country. Registration or registry is the process by 
which United States vessels secure the protection of this 
government in any part of the world. There is issued to 
the registered vessel by the government a document contain- 
ing a general description of the vessel, and this is intended 
to serve as a means of identification and a certificate of pro- 
tection. Only vessels owned by citizens of the United States 



LEGISLATIVE DEPARTMENT 129 

and built in this country are registered. Under the author- 
ity of this provision also congress has taken measures for the 
protection of shipping by building and maintaining light- 
houses and buoys, providing life-saving stations, improving 
harbors, establishing quarantine regulations, requiring the 
employment of licensed pilots, making coast surveys, etc. 
Finally, it is by virtue of this provision that congress has 
undertaken to regulate immigration into the United States. 
Under existing immigration laws admission to the country 
is denied to the following classes of persons: the Chinese, 
convicts, insane persons, paupers and those liable to be- 
come paupers, polygamists, anarchists, persons afflicted with 
contagious diseases, and laborers under contract to perform 
labor or service in the United States, excepting persons en- 
gaged in the professions and skilled laborers employed in 
the establishment of new industries. The object of these 
restrictions is obviously to bar out those classes of persons 
who, for various reasons, would be likely to constitute an 
undesirable element in the population; namely, those who 
because of some mental, moral, or physical defect could 
hardly be expected to become desirable citizens and might 
even be dangerous; those who for economic reasons would 
be objectionable in the eyes of a large proportion of our 
own population; and those who, because of wide racial dif- 
ferences, could not be easily " Americanized." 

156. Interstate Commerce. Not less important than its 
control over foreign commerce is the power granted to con- 
gress to regulate interstate commerce. In interstate com- 
merce is included not only land traffic between the states but 
also coast trade and commerce upon navigable rivers. In its 
" river and harbor" bills, therefore, congress yearly makes 



130 CIVIL GOVERNMENT 

large appropriations in aid of interstate commerce. The most 
important piece of legislation in regulation of interstate com- 
merce ever passed by congress was the interstate commerce 
act of 1887. This was intended to relieve the public of some 
of the evils that had grown up in connection with the develop- 
ment of the great railway systems of the country. When the 
numerous small competing lines had been consolidated into a 
few great systems controlling a very large proportion of all 
interstate commerce, combination between these systems for 
the purpose of raising freight * and passenger rates, or secur- 
ing for themselves other unfair advantages, became compara- 
tively easy. The interstate commerce act was an attempt 
to remedy such evils. Among other things it provided (1) 
that all rates should be reasonable; (2) that there should be 
no unfair discrimination between persons, corporations, or 
localities; (3) that equal facilities should be given to all con- 
necting lines; (4) that the charge for a "short haul" should 
not be greater than for a "long haul" under similar con- 
ditions; (5) that there should be no "pooling" 2 agreements; 
and (6) that an interstate commerce commission should be 
created to supervise the administration of the law. The 
commission created in accordance with the act consists of 
five persons appointed by the president with the consent of 
the senate. It has power to investigate all cases brought 
before it, to take testimony, and to render decisions; but it 

1 See Montague, "The Rise and Progress of the Standard Oil Com- 
pany." New York, 1903. 

2 "Pooling" is an arrangement whereby a number of roads turn their 
earnings into a common fund to be distributed among the companies con- 
cerned in certain proportions agreed upon beforehand, the object being to 
remove the temptation to cut rates. Sometimes the freight itself is divided 
among the roads in fixed proportions. 



LEGISLATIVE DEPARTMENT 131 

cannot enforce its decisions by the infliction of penalties. 
That can be done only by regular process of the courts; 
and since conviction is a difficult matter, the interstate 
commerce law has never been fully enforced. Nevertheless 
the commission has exercised great influence in lessening 
the evils that the law was intended to correct. 
\J 157. Anti-Trust Law. Another important legislative act 
for the regulation of interstate commerce is the federal 
anti-trust law of 1890, making illegal "any contract, com- 
bination in the form of a trust or otherwise, or conspiracy in 
restraint of trade or commerce among the several states or 
with foreign nations." A trust may be loosely defined as a 
combination of manufacturers in any particular line, organ- 
ized for the purpose of securing greater economy in produc- 
tion and preventing some of the losses incident to compe- 
tition. Those who form a trust ordinarily do so with the 
hope of being able to limit the output of the commodity and 
control prices, thus violating the common law principle 
which forbids any unreasonable restraint of trade. A ma- 
jority of the states have therefore passed laws prohibiting 
such combinations so far as their operations affect trade 
within the states; while the federal anti- trust law attempts 
to secure like protection for commerce between the states 
and with foreign nations. 

158. Bankruptcy Laws. The right of congress to estab- 
lish " uniform laws on the subject of bankruptcies through- 
out the United States" may likewise be looked upon as a 
power given for the sake of enabling the government to 
afford more effective protection to interstate commerce. The 
power of congress to pass bankruptcy laws does not inter- 
fere with the retention of a similar power by the states; it 



132 CIVIL GOVERNMENT 

only limits the power of the states in this matter. State 
bankruptcy laws affect only contracts made within the state 
between citizens of the state. Moreover, during the exist- 
ence of a national bankruptcy law, state laws that are in 
conflict with it in any particular, are suspended. 

159. Piracy. Congress is also given by another clause of 
the constitution, the power "to define and punish piracies 
and felonies committed on the high seas and offences against 
the law of nations." Piracy, i.e., robbery committed on the 
high seas or committed by descent upon the coasts from the 
sea, is a menace to commerce and must naturally be made 
punishable by the same authority whose duty it is to pro- 
tect commerce. Felonies committed on the high seas and 
offences against the law of nations are very likely also to 
have to do with commerce; and must in any case be made 
punishable by the United States, since the law of nations 
recognizes only the government of the nation, not that of 
New York or Ohio. 

160. "Weights and Measures. The same clause of the con- 
stitution that gives congress power to coin money gives it 
authority also to "fix the standard of weights and measures." 
Though this is a matter of considerable importance to trade, 
it was not until 1875 tnat congress established a bureau of 
weights and measures, and not until 1901 that a law was en- 
acted giving full effect to this grant of power by establishing 
a national standardizing bureau in the treasury department. 

161. War Powers. We have seen how powerless congress 
was under the articles of confederation to prosecute a vig- 
orous war. Fortunately, before they went into effect the 
revolution was already drawing to a close; and while they 
remained the fundamental law of the land the government 



LEGISLATIVE DEPARTMENT 133 

was not again called upon to face the emergency of war. 
The members of the constitutional convention, however, 
realized the danger and remedied the defect of the old gov- 
ernment by granting to the new one ample military powers. 
Congress was given power: 

(1) To declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water; 

(2) To raise and support armies, but no appropriation of 
money to that use shall be for a longer term than two years; 

(3) To provide and maintain a navy; 

(4) To make rules for the government and regulation of 
the land and naval forces; 

(5) To provide for calling forth the militia to execute the 
laws of the United States, suppress insurrections, and repel 
invasions ; 

(6) To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be em- 
ployed in the service of the United States, reserving to the 
states respectively the appointment of the officers, and the 
authority of training the militia according to the discipline 
prescribed by congress. 

In addition to these powers congress was given the right : 

(7) To exercise exclusive legislation in all cases whatsoever 
over all places purchased by the consent of the legislature of 
the state in which the same shall be, for the erection of forts, 
magazines, arsenals, dockyards, and other needful buildings. 

162. Declaration of War. When the constitutional con- 
vention came to discuss the question as to where the power 
to declare war should reside, they considered the plan usu- 
ally followed by European nations of leaving that preroga- 
tive with the executive. The question was settled, however, 



134 CIVIL GOVERNMENT 

by their adopting what they felt to be the more republican 
as well as the safer principle of granting this important 
power to the representatives of the people. While a 
formal declaration of war is not a necessary preliminary 
to hostilities, it is usual for a nation to make such a 
declaration. 

163. Armies. The power to declare war implies as a con- 
sequence the power to raise and support armies. Under 
ordinary circumstances congress raises armies by enlistment 
(voluntary enrollment), but in case of necessity it may raise 
them and has raised them by conscription or draft (forced 
enrollment). It rests with congress also to determine the 
size of the army and the term for which the men shall serve; 
to furnish the necessary supplies and equipment; to build 
fortifications, arsenals, barracks, hospitals, etc.; to provide 
schools for the instruction of officers and men; to do all that 
may be required in order to make the army efficient. It 
was thought best, however, in giving congress this power of 
raising and supporting armies, to impose an important re- 
striction. It was provided that no appropriations for this 
purpose should run for a longer term than two years. This 
keeps the army strictly dependent upon the people for its 
existence and support and enables them to control the mil- 
itary policy of the country. As a matter of fact, these ap- 
propriations have generally been made annually. 

164. The Regular Army. It has always been the policy 
of the United States to keep the standing army small and to 
rely upon the militia for defence in extraordinary emergen- 
cies — a policy dictated partly by fear of the possible power 
of the army, partly by the fact that our geographical posi- 
tion makes the maintenance of a great army unnecessary. 



LEGISLATIVE DEPARTMENT 135 

To European eyes * our standing army must seem absurdly 
small. Before 1898 the maximum limit was 27,000 enlisted 
men. By act of congress passed March 2, 1899, the presi- 
dent was empowered to increase the regular army to 65,000 
for a term of two years; and in February, 1901, the new 
army law fixed the minimum number of men at 57,000 and 
the maximum at 100,000. The army is organized by divid- 
ing it into departments. The departments are made up of 
one or more brigades; the brigades of three regiments; the 
regiments, if infantry of twelve companies, if cavalry of 
twelve troops or companies, if artillery of fourteen companies 
or batteries. The maximum number of men in a company 
is one hundred. The president is ex officio commander-in- 
chief; but the actual operations of the army are directed by 
the lieutenant-general, the officer highest in command. The 
title of general is an honorary title. The department or the 
brigade is commanded by a brigadier-general, the regiment 
by a colonel aided by a lieutenant-colonel and a major, the 
company by a captain and first and second lieutenants. 
Non-commissioned officers are first sergeant, sergeant, and 
corporal. 

165. The Militia. In addition to the regular army the de- 
fence of the country is provided for by means of the militia. 
As defined by congress this is made up of all able-bodied 
male citizens between the ages of eighteen and forty-five. 
It is partly organized and partly unorganized. The organ- 
ized portion, known as the national guard, is regularly 
equipped, drilled, and officered; but this work is done by 

1 In 1903 the armies of Europe on a peace basis were: Germany, 601,411 
men; France, 561,375; Italy, 226,528; Austria-Hungary, 288,834; Russia, 
1,098,946; England, 237,622. 



136 CIVIL GOVERNMENT 

the states according to the discipline prescribed by congress, 
and the choice of all regimental officers of the militia is left to 
the several states. In case they are needed "to suppress in- 
surrections or repel invasions " the president issues a call to the 
governors of the states, who thereupon furnish the necessary 
troops. They then become a part of the military force of the 
United States and are subject to the same discipline as the 
regular army. Five times the militia has been called out: 
during the whiskey rebellion, the war of 181 2, the civil war, 
the Spanish war, and to suppress the Philippine insurrection. 
166. The Navy. For many years before 1883 the United 
States navy, as compared with the navies of the old world, 
was very insignificant. Only for a short period during and 
immediately after the civil war was it maintained in any- 
thing like a state of efficiency. During the last quarter of 
a century, however, the rapid expansion of our commercial 
and political relations with distant parts of the world has 
resulted in the building up of a really efficient navy. The 
power granted congress to build and maintain a navy im- 
plies of course the power to do whatever may be necessary 
to make it efficient — to enroll seamen, construct vessels, 
establish navy-yards and docks, furnish supplies and muni- 
tions, and provide for the instruction of officers and men in 
schools or otherwise. In some states a naval militia has 
been organized. If called into service in time of war, they 
man vessels for the defence of the harbors, thus freeing the 
regular naval force for other duties. In the navy the offices 
of admiral 1 and vice-admiral correspond to that of general 
in the army, i.e., are honorary titles; neither of these offices 
is permanently maintained. The office of rear-admiral cor- 

1 New International Encyclopedia, vol. I, p. 122. 



LEGISLATIVE DEPARTMENT 137 

responds to that of lieutenant-general in the army. The 
other officers are commodores, captains, commanders, lieu- 
tenant-commanders, lieutenants, lieutenants junior grade, 
ensigns, and naval cadets. 

167. Military Law and Courts. To congress also is as- 
signed the duty of making rules for the government and 
regulation of the land and naval forces. Accordingly there 
has been enacted a code called the "military law" prescrib- 
ing tactics and arrangement of troops, classifying officers 
and men, regulating their pay, defining military and naval 
offences, and providing for their punishment by means of 
special tribunals called courts-martial (i.e., military courts), 
whose jurisdiction and procedure it establishes. 

168. Letters of Marque and Reprisal: Captures. It will 
be noticed that the same clause that gives congress power 
to declare war gives it also the power to "grant letters of 
marque and reprisal and make rules concerning captures 
on land and water." Letters of marque and reprisal are 
permits issued by the government of a state in time of war 
to vessels owned and officered by private persons, giving 
them the privilege of seizing the property of the enemy 
wherever found. Such vessels are called privateers and have 
in past wars wrought great injury to commerce. When our 
constitution was framed, the custom of granting letters of 
marque and reprisal was general; but in 1856 an agreement 
was entered into by most of the great European powers that 
privateering should be abolished. Neither Spain nor the 
United States was a party to this agreement, and at the 
breaking out of the Spanish-American war the question of 
permitting privateering came up. Our government decided 
to observe the agreement of 1856. Spain, on the other hand, 



138 CIVIL GOVERNMENT 

declared in favor of granting letters of marque and reprisal, 
though none was actually granted. It seems hardly likely 
that our government will ever again resort to this method 
of naval warfare. The rules laid down by congress in re- 
gard to captures are briefly as follows: captures on land are 
the property of the government; captures on the water are 
sold. If the captured vessel is superior or equal in rank to 
the vessel making the capture, the proceeds are divided 
among the victorious crew according to the pay of each; if 
the captured vessel is of inferior rank, half the proceeds go 
to the government, the rest to the crew. 

169. Military Property. We have already seen that in 
providing and maintaining an efficient army and navy, con- 
gress has need of a very considerable amount of military 
property, such as forts, magazines, arsenals, dockyards, etc. 
Over all places purchased from the states for the purpose of 
erecting such structures or any other necessary buildings, 
congress is of necessity given the right to exercise exclusive 
legislation. No matter in what state they may be located, 
they are never subject to state law, except that the states 
usually reserve the right to serve civil and criminal writs on 
persons within the ceded territory. 

170. Miscellaneous Powers: Naturalization. Besides the 
powers granted to congress in. matters relating to money > 
commerce, and war, the constitution also confers upon it a 
number of other powers not easily capable of classification. 
One of these is the power "to establish a uniform rule of 
naturalization." Naturalization is the term applied to the 
process by which persons who have been citizens of one 
country become citizens of another. Before the adoption 
of the constitution each state made its own naturalization 



LEGISLATIVE DEPARTMENT 139 

laws without much regard to the rules existing in other states. 
The natural result was confusion, which was remedied by 
giving this power into the hands of the general government. 
Until the passage of the XlVth amendment to the constitu- 
tion some question existed as to what constituted citizenship 
in the United States. That amendment settled the question 
by declaring that "All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the state wherein they 
reside." All other residents of the United States are aliens. 
171. Naturalization Laws. Since the adoption of the con- 
stitution congress has passed several naturalization laws. 
The present law requires that the alien who desires to be- 
come a citizen must appear before a court of record at least 
two years before admission to citizenship and there declare 
on oath his intention to become a citizen and to renounce 
his allegiance to any other government. This declaration 
is then recorded and the applicant is furnished with a copy 
of the record. Two years later the applicant for citizenship 
must appear in open court, must furnish proof that he has 
resided continuously in the United States for five years, and 
in the state or territory where the court is held for at least 
one year, and that he has behaved as a man of good moral 
character. He must then take an oath to support the con- 
stitution of the United States and renounce allegiance to any 
foreign government. If he has held any foreign title or 
order of nobility, it must be renounced. These facts are 
then recorded and a certificate of naturalization is granted. 
The wife and minor children of a naturalized citizen become 
citizens through his naturalization. Minor children take 
the citizenship of their parents. Thus children born abroad 



14° CIVIL GOVERNMENT 

to citizens of the United States, either native born or natur- 
alized, are American citizens. Naturalization is denied to 
Chinese. 

172. Postal Service. Another of the miscellaneous powers 
belonging to congress is the power "to establish post-offices 
and post-roads." In granting this power the constitutional 
convention was simply continuing a power that had already 
been delegated to the general government by the articles of 
confederation. The postal service is, indeed, so obviously 
a matter that can be better managed by the general govern- 
ment than by the states that it is not surprising that it aroused 
little discussion. The members of the convention seem not 
to have foreseen, however, how vast and important an enter- 
prise the postal system of the United States was to become. 
The Federalist, discussing this matter very briefly, says, 
as if half apologizing for troubling the general government 
with so unimportant a business: "Nothing which tends to 
facilitate the intercourse between the states can be deemed 
unworthy of the public care." We shall not, perhaps, be 
surprised at this attitude, if we remember that in 1790 there 
were in the United States only 75 post-offices and 1,875 
miles of mail routes, and that the total postal revenue was 
only $37,935; while in 1902 there were nearly 76,215 post- 
offices, more than 507,540 miles of mail routes, and a revenue 
of $121,848,047. The United States does not attempt to 
make its postal system pay a profit, the policy having been 
for the last half -century and more to conduct it simply on 
an expense paying basis. As a matter of fact, during most 
of that period the annual expenditures have been greater 
than the revenue. Since 1870 there has been every year 
except two a deficit, that of 1901 amounting to nearly four 



LEGISLATIVE DEPARTMENT 141 

million dollars. The law defines as post-roads "all letter 
carrier routes in towns and cities, all railroads and canals, 
and all the waters of the United States during the time mail 
is carried thereon." 

173. Copyrights and Patents. The power to issue copy- 
rights and patents is another power given to congress, the 
purpose assigned in the constitution itself being, "to pro- 
mote the progress of science and useful arts." Copyright 
may be defined as the grant by a government to the author 
of an intellectual production (book, painting, sculpture, de- 
sign, photograph, musical composition, etc.) of the exclusive 
right for a limited time to multiply and dispose of copies of 
it. A person desiring to secure a copyright on such a pro- 
duction sends to the librarian of congress a printed copy of 
the title in case of a book or similar production, or a descrip- 
tion in case of a painting, statue, etc. On or before the day 
of publication two printed copies of the book, etq., or a 
photograph of the painting, etc., must be sent to the same 
official. A fee of fifty cents must be paid the librarian of 
congress for recording the title or description, and an addi- 
tional fifty cents for furnishing a copy of the record. A 
copyright runs for a period of twenty-eight years and is re- 
newable for fourteen more. A patent is the grant by a gov- 
ernment to the author of a new and useful invention of the 
sole right to make and sell it for a limited term. The in- 
ventor who desires a patent must, in his application to the 
commissioner of patents, declare under oath that he believes 
himself to be the real author of the invention; must file in 
the patent office a full description of the article, together 
with drawings and possibly a model; and must pay a fee 
of $15 on filing his application and an additional $20 if the 



142 CIVIL GOVERNMENT 

patent be allowed. A patent is issued for a term of seven- 
teen years, and may be renewed for a term of seven years 
by the commissioner of patents or by act of congress, pro- 
vided, however, that the inventor has not received an ade- 
quate money return. 

174. The National Capital. By the same clause of the 
constitution which gave congress power to control all places 
purchased for the erection of forts, magazines, etc., power 
was also conferred upon it to "exercise exclusive legislation 
. . . over such district (not exceeding ten miles square) as 
may, by cession of particular states and the acceptance of 
congress, become the seat of the government of the United 
States." The need for such a provision had been shown 
by an unpleasant experience suffered at Philadelphia by the 
congress of the confederacy at the hands of an unpaid por- 
tion of the Revolutionary troops in 1783. The failure of 
the state government to afford the protection asked for had 
made it clear that the federal legislature must be given the 
power to protect itself and the seat of the federal govern- 
ment from the possibility of a repetition of such insults. 
From 1785 to 1790 New York was the national capital. In 
1 790 the seat of government was transferred to Philadelphia, 
where it remained until 1800, when it was permanently 
located in the District of Columbia. This was a piece of 
territory, originally ten miles square, lying along the Poto- 
mac, which was ceded to the United States by the states of 
Maryland and Virginia to be used as the seat of the national 
government. About thirty square miles on the right bank 
of the river were afterward receded to Virginia. 

175. The Government of the District is provided for en- 
tirely by the federal authorities, the people having no po- 



LEGISLATIVE DEPARTMENT 143 

litical rights. The executive officers are three commission- 
ers, two of whom are appointed for three years by the presi- 
dent with the consent of the senate, and one detailed from 
the corps of engineers of the United States army by the 
president to serve during his pleasure. They have gen- 
eral charge of municipal affairs, providing for the policing 
of the District, fire protection, education, etc. All officers 
other than the three commissioners are appointed by the 
president. The commissioners have the power to recom- 
mend needed legislation, but congress is the legislative 
body of the District, and all bills relating to it are passed in 
the regular manner. Congress pays one-half the expenses 
for the government of the territory; the other half is met by 
taxation of the inhabitants. The judicial power of the Dis- 
trict is vested in a supreme court consisting of six judges 
appointed by the president for life. 

176. Government of Territories. Closely allied to this 
special power granted to congress to govern the territory in 
which is located the seat of the federal government, is the 
power granted it in another article of the constitution "to 
dispose of and make all needful rules and regulations respect- 
ing the territory or other property belonging to the United 
States." It is from this provision that congress derives 
the authority to govern its territories. We have already 
seen (§81) that before the adoption of the constitution the 
vast tract of land known as the Northwest Territory, the 
different portions of which were claimed by several of the 
states, had been ceded by those states to the general govern- 
ment. Following these cessions the congress of the con- 
federation passed the act known as the ordinance of 1787, 
providing a government for this vast public domain — an 



144 CIVIL GOVERNMENT 

act that has been called "the most important piece of gen- 
eral legislation of the confederation epoch." It is certain 
that congress under the articles of confederation had no 
power. to pass such an ordinance, and many writers have 
declared it of no effect. It matters little now; for the first 
congress that assembled under the constitution, having been 
given the authority to pass such legislation, reenacted the 
ordinance, which has ever since furnished the model upon 
which the territories of the United States have been organ- 
ized. 

177. Organized and Unorganized Territories. The Spanish- 
American war, resulting as it did in the acquisition by the 
United States of a number of insular possessions, most of 
them containing a population very different in character from 
that of the states and other territories, has very considerably 
complicated the problems of territorial government. Pre- 
vious to that war the territories were simply divided 
into two classes — organized and unorganized. In the or- 
ganized territories, including Arizona, New Mexico, Okla- 
homa, and, since 1900, Hawaii and Porto Rico, the 
government conforms with slight variations to the follow- 
ing type. There are the three departments of government 
— the executive, the legislative, and the judicial. The 
executive department consists of a governor, appointed by 
the president with the consent of the senate for a term 
of four years; a secretary similarly appointed; a treasurer, 
an auditor, and usually a superintendent of public instruc- 
tion, appointed by the governor. The governor is ex 
officio commander of the militia. He has a veto power 
over the acts of the legislature, but his veto may be over- 
ridden, except in Arizona, by a two- thirds vote of the 



LEGISLATIVE DEPARTMENT 145 

house. He makes annual reports to the president and sends 
a message to the territorial legislature. The legislature con- 
sists of two houses, a council and a house of representatives, 
elected for a term of two years by the voters of the territory, 
voting in districts. The sessions are biennial and limited to 
sixty days. The sphere of legislation in the territorial legis- 
lature is practically as wide as that of the state legislatures; 
but congress has the power to annul or modify any act, thus 
maintaining complete control over the internal affairs of the 
territory. The people of the territory send a delegate to 
congress, who has the privilege of debate but no vote. The 
judicial department consists of a supreme court of three or 
more judges appointed for a term of four years by the presi- 
dent with the advice and consent of the senate. In the un- 
organized territory, of which there are now only two — 
Alaska and Indian Territory — there is no legislature. In- 
stead, the governor with the assistance of the judiciary or of 
a council, performs the necessary legislative functions. 
Congress has enacted a code of laws for each of the unor- 
ganized territories. 

178. Territories : A New Classification. Since the Span- 
ish-American war a decision of the supreme court has prac- 
tically established a new classification for the territories. 
According to this decision there are (1) those constituting 
"a part of" the United States, and (2) those "belonging to" 
the United States. To the first class belong Alaska, Indian 
Territory, Arizona, New Mexico, and Oklahoma; to the sec- 
ond, Hawaii, Porto Rico, the Philippines, Guam, and the 
Samoan possessions of the United States. Hawaii and Porto 
Rico have been given organized territorial governments con- 
forming in a general way, though not completely, to the 



146 CIVIL GOVERNMENT 

type existing in the organized territories constituting "a 
part of" the United States. The other territories " belong- 
ing to" the United States are variously governed by the 
.military or naval authorities or by special commissions. 

179. Power to Establish Courts. One other specific power 
the constitution intrusts to congress — namely, the power 
"to constitute tribunals inferior to the supreme court." In 
accordance with this grant of power, congress created by the 
judiciary act of 1789 the district courts and the circuit courts 
and defined their functions. In 1855 it established the 
court of claims, and in 1891 the circuit courts of appeals. 1 

180. The Elastic Clause. So far we have been dealing 
with specific powers granted to congress by the constitution. 
There remains to be considered a very important clause, 
often called the "elastic clause," conferring upon congress by 
a general grant of power the right to do whatever may be 
necessary and proper for carrying out the provisions of the 
constitution. The exact wording of the clause is as follows: 
Congress shall have power "to make all laws which shall be 
necessary and proper for carrying into execution the fore- 
going powers and all other powers vested by this constitu- 
tion in the government of the United States, or in any de- 
partment or officer thereof." It is out of the difference of 
opinion as to the interpretation of this clause that the two 
great schools of constitutional construction have arisen, the 
strict constructionists and the liberal constructionists, the 
defenders of the doctrine of state rights and the upholders 
of the opposing doctrine of implied powers. The first in- 
sist that the constitution, and in particular this clause of it, 

1 For a description of the character and functions of these courts, see 
§§ 281-287. 



LEGISLATIVE DEPARTMENT 147 

should be strictly and narrowly construed, so as to give 
congress power to pass only such laws as are absolutely 
necessary in order to make effective the powers expressly 
granted. The liberal constructionists, on the other hand, 
maintain that by the phrase "laws which shall be necessary 
and proper" is meant, not only such as are indispensable to 
the exercise of the powers granted congress, but all such as 
are in any way conducive to their complete execution. The 
decisions of the supreme court, when that body has been 
called upon to settle constitutional questions arising under 
this clause, have in general been made on the principle of 
liberal construction. 

181. Special Powers of Each House. We come now to the 
consideration of certain special powers granted to each of 
the two houses of congress, but not to congress as a whole. 
We have seen that each house is given the power of control- 
ling its own organization and members; but there is given to 
each in addition certain important governmental powers. 
The special powers possessed by the house of representa- 
tives are three in number — the power to initiate all bills for 
raising revenue, the power of impeachment, and the power 
of electing the president in case no choice is made by the 
electors. The special powers of the senate are (1) the power 
to ratify treaties and to confirm presidential appointments, 
and (2) the power to act as a court of impeachment. 

182. The House: Revenue Bills. Doubtless the conven- 
tion in intrusting only to the house of representatives this 
power of initiating revenue bills was largely influenced by 
the practice of England, where for several centuries that 
power had resided in the house of commons. It was felt 
that the house, being renewed at frequent intervals by pop- 



148 CIVIL GOVERNMENT 

ular election and thus standing more closely in touch with 
the people than could the senate, ought to be given control 
of the power of taxing the people. But the convention was 
influenced also by a less theoretical reason. The larger 
states, fearful that they might be unfairly taxed if the senate 
were given equal powers with the house in this matter, de- 
manded this provision as a protection and also as a compen- 
sation for having yielded to the senate the right to ratify 
treaties and to try impeachments. By the same clause, 
however, the senate is given the power to propose or concur 
with amendments to revenue bills, a power of which it avails 
itself so freely, that most money bills, whether for raising 
revenue or expending it, are finally passed only by means of 
conference and compromise between the two houses. There 
is no constitutional provision that appropriation bills (bills 
for the expenditure of money) should originate in the house, 
but as a matter of custom the important general appro- 
priation bills do originate there. 

183. The House: Impeachment. In placing the power of 
impeachment (bringing charges of official misconduct against 
an official) solely in the hands of the house of representa- 
tives the convention was again borrowing indirectly from 
English practice through the state constitutions. According 
to the constitution the persons who may be impeached are 
the president, the vice-president, and all civil officers of the 
United States, the term civil officers being used here in dis- 
tinction from military and naval officers, who are subject to 
military law and whose offences are tried by courts -martial. 
Since offending senators and representatives may be ex- 
pelled by a two-thirds vote of their respective houses, it has 
been deemed unnecessary to impeach them. The offences 



LEGISLATIVE DEPARTMENT 149 

for which officers may be impeached are " treason, bribery, or 
other high crimes and misdemeanors;" but the exact mean- 
ing of the last phrase has never been accurately determined. 
Since the adoption of the constitution there have been seven 
impeachment trials and two convictions. 

184. The House: Presidential Election. The election of 
the president by the house of representatives has occurred 
twice — in the case of Jefferson in 1801, and of John Quincy 
Adams in 1825. In assigning this power to the house of 
representatives the convention, mindful of the fact that large 
executive powers (the confirmation of presidential appoint- 
ments and the ratification of treaties) had been given to the 
senate, felt that that body should have no voice in the ap- 
pointment of the executive. 

185. The Senate: Executive Powers. Of the special pow- 
ers of the senate, the two just mentioned — the ratification 
of treaties and the confirmation of appointments — are ex- 
ecutive in their nature ; the third — the power to act as a 
court of impeachment — is judicial. Though the senate 
was created as a part of the federal legislature, it was at first 
looked upon principally as an executive body. Hamilton in 
The Federalist 1 speaks of the executive power as divided 
between the president and the senate; and the senate for 
the first five years of its existence conducted itself as an ex- 
ecutive body, holding its sessions until 1794 in secret. The 
senators looked upon themselves to a great extent as am- 
bassadors from the states, and the president and cabinet 
officers sometimes consulted in person with the senate. Not 
until after the creation of its standing committees in 181 6 
did it become in legislation coordinate with the house. At 

1 The Federalist, Nos. 64-66. 



150 CIVIL GOVERNMENT 

present we think of the senate as primarily a legislative 
body; but it may at any moment turn itself into an execu- 
tive body by going into "executive session." This it does 
when the subject under discussion is the confirmation of ap- 
pointments or the ratification of treaties. As a matter of 
fact, though the penalty for disclosing what goes on behind 
the closed doors of the senate is expulsion, it has been found 
very difficult to maintain secrecy, particularly in the matter 
of the confirmation of appointments. For this reason there 
has been some agitation in favor of abandoning the " secret " 
session. 

186. The Senate : Working of these Powers. It was the 
purpose of the convention in giving these powers into the 
hands of the senate to impose a check upon the power of 
the president. This it certainly does to some extent, though 
it is questioned whether the imposition of this check 
has operated entirely in the interests of good government. 
The participation of the senate in the treaty-making power, 
reducing as it does the difficulties always experienced by 
popular governments in dealing with foreign affairs, has gen- 
erally been approved by critics of our political arrangements, 
though even here the requirement of a two-thirds vote for 
ratification has been criticised as giving too much power into 
the hands of a troublesome minority. Such a minority, in- 
tent upon party or local rather than national interests, may 
find it possible to postpone indefinitely or prevent altogether 
the settlement of important foreign affairs. The value of 
the other executive function intrusted to the senate — the 
power of confirming presidential appointments — is in gen- 
eral more seriously questioned. It is asserted that the ar- 
rangement does not in practice prevent abuses of the presi- 



LEGISLATIVE DEPARTMENT 151 

dent's appointing power; that if the president and the ma- 
jority in the senate are of the same party, the appointments 
are arranged between them and the real object of the pro- 
vision is defeated; that if they are of opposite parties, the 
senate confirms the worst appointments in order to subject the 
president to hostile criticism in the next political campaign. 
187. The Senate: Judicial Function. The only judicial 
function of the senate is to act as a court for the trial of im- 
peachment cases. The method of procedure is as follows. 
The charges against the officer impeached are preferred, as 
we have already seen, by the house of representatives, which 
prepares articles of impeachment, corresponding to the in- 
dictment in ordinary criminal trials. The house then chooses 
by ballot a number of "managers" to conduct the case be- 
fore the senate. The senate organizes for this purpose by 
putting its members under oath to conduct the trial impar- 
tially. If the president is being tried, the chief justice acts 
as presiding officer; in other cases, the president or presi- 
dent pro tempore of the senate. A two-thirds vote of the 
members is required for conviction, the object being to pre- 
vent the use of impeachment for party purposes. The ac- 
cused, may appear in person or through counsel, witnesses 
are examined, evidence taken, and the senate then deliber- 
ates in secret session. In case of conviction the only pun- 
ishment that the senate has power to impose is removal from 
office and disqualification for further official service under 
the United States; but the officer is still liable to trial before 
the ordinary courts, if he has committed any crime. Dur- 
ing the trial the accused may continue his regular duties. 
In case of conviction the president cannot exercise his par- 
doning power. This power of trying impeachment cases was 



152 CIVIL GOVERNMENT 

not granted to the senate by the convention without objec- 
tions, but the objections then urged have proved groundless. 

188. Limitations upon Congress: Taxation. So far we 
have been dealing with the powers granted to congress as a 
whole and with the special powers granted to the separate 
houses. We come now to some limitations imposed upon 
congress by the constitution — the things which congress may 
not do. The restrictions laid upon congress in the matter of 
taxation are two: (i) it may lay no capitation or other direct 
tax except in proportion to the census; (2) it may lay no tax 
or duty on exports. We have already noted that the general 
government does not at present levy any direct tax. If it 
should do so, however, it is required to levy it in proportion 
to population, i.e., the amount of revenue to be collected by 
the tax must be determined, and this must then be ap- 
portioned among the states according to population. 1 
The prohibition laid upon congress in the matter of taxing 
exports was a practical necessity. The extent of the country 
and the variety of its resources make it, and made it even in 
1787, practically impossible to lay such a tax without working 
injustice and hardship somewhere. There was, nevertheless, 
in the convention, considerable difference of opinion on this 
point, not a few holding that the government would be in- 
complete without a power to tax exports as well as imports. 

189. Commerce. Appropriations. The restrictions im- 
posed upon congress in the matter of commerce relate to 
the slave-trade and to interstate matters. The provision in 
regard to the slave-trade was the result of one of the com- 

1 The supreme court has decided that an income tax is a tax upon the 
property from which the income is derived and is therefore a direct tax 
and unconstitutional, since it is not levied in the manner prescribed by the 
constitution. 



LEGISLATIVE DEPARTMENT 153 

promises of the constitution already noted elsewhere (§ 104). 
It will be remembered that in the convention the delegates 
from the slave-holding and slave-trading states objected to 
giving congress complete control over commerce, lest the 
economic interests of their states might suffer by a too 
sudden abolition of the slave-trade. The debate resulted 
finally in the concession to congress by the slave states of 
full ultimate control of commerce in return for a continu- 
ance of the slave-trade for a limited period, congress being 
prohibited from forbidding the traffic prior to the year 1808. 
In regard to interstate affairs, congress is forbidden to make 
any regulation that shall give a preference to the ports of 
one state over those of another, or that shall oblige vessels 
bound to or from one state to enter, clear, or pay duties in 
another. Congress is also prohibited from drawing money 
from the treasury, "but in consequence of appropriations 
made by law; and a regular statement and account of the 
receipts and expenditures of all public money shall be pub- 
lished from time to time." 

190. Other Restrictions : Habeas Corpus. A few other re- 
strictions are laid upon congress with the purpose of securing 
to the citizens of the United States personal liberty and 
equality. These are the provisions in regard to the suspen- 
sion of the writ of habeas corpus, in regard to bills of at- 
tainder and ex post facto laws, in regard to titles of nobility, 
etc. The constitution provides that "The privilege of the 
writ of habeas corpus shall not be suspended, unless when, 
in cases of rebellion or invasion, the public safety may re- 
quire it." The writ of habeas corpus is "a guarantee of 
personal liberty as old as Magna Charta." It is a writ 
granted by a court requiring a prisoner to be brought before 



154 CIVIL GOVERNMENT 

the court in order that the legality of his detention may be 
investigated, and that he may be at once liberated if illegally 
detained. The question as to where the right to suspend 
the writ is lodged was left unsettled by the constitution. 
By judicial decision it has been given to congress, but that 
body may grant the right to the president. In the few 
cases where the writ has been suspended — namely, during 
the civil war — the power was exercised by the president. 

191. Bills of Attainder : Ex Post Facto Laws. The passing 
of bills of attainder and ex post facto laws is absolutely for- 
bidden by the constitution. Bills of attainder are special 
legislative acts inflicting capital punishment for high offences 
such as treason, without a judicial trial. If the punishment 
inflicted is less than death, the bill is properly a "bill of 
pains and penalties" rather than attainder. The ex post 
facto law is defined by Chief Justice Marshall as "one which 
renders an act punishable in a manner in which it was not 
punishable when committed." English jurists have held 
that the term applies only to criminal not to civil law, and 
the United States supreme court has taken the same posi- 
tion; but from the discussion that took place in the conven- 
tion concerning this point, it would seem that the framers 
of the constitution meant by ex post facto laws all that are 
retroactive. 

192. Titles of Nobility. Finally, "No title of nobility shall 
be granted by the United States ; and no person holding any 
office of profit or trust under them, shall, without the con- 
sent of congress, accept of any present, emolument, office, 
or title of any kind whatever from any king, prince, or for- 
eign state." At the time of the adoption of the constitution 
and even much later there existed a general feeling of an- 



LEGISLATIVE DEPARTMENT 155 

tagonism to titles. They were regarded as inseparable from 
aristocratic and monarchical forms of government, and Ham- 
ilton called their prohibition the corner-stone of republican- 
ism. The last part of the provision was inserted to preserve 
foreign ministers and United States officers from the danger 
of bribery by foreign governments. 

Library References, — Ashley, §§ 272-275, 292-297, 301-325, 396-398; 
Macy, Chaps. XXVI-XXVII, XXXVIII, XL; Macy, First Lessons, Chaps. 
XVI-XVII; Dawes, Chaps. Ill, XV. pp. 129-130, 146-148; Hinsdale, 
Chaps. XXI-XXII, XXV-XXVI, pp. 330-333; Fiske, pp. 228-229, 2 54~ 
257, 263-268; Bryce, Vol I, Chaps. XI, XVI-XVII, XL VII; Wilson, 
§§ 1047-1052, 1084; Harrison, pp. 58-67; Curtis, Vol. I, Chaps. XXVI- 
XXVII; Wilson, Congressional Government, Chap. Ill, pp. 230-241, 275- 
277; Clow, Chap. Ill; Dole, pp. 69-71, Chap. XVI; Alton, Chaps. XXIV, 
XXIX; Lalor, Article on Powers of Congress; Woodburn, pp. 158-172, 
177-182, 211-213, 231-239, 255-257, 305-310, Chap. VIII. 

QUESTIONS ON THE TEXT 

113. Why are the general powers of congress enumerated in 
the federal constitution, while similar powers of state legislatures 
are not specified in state constitutions? 

114. State five powers of congress. 

115. Mention three important powers vested exclusively in the 
house of representatives and give the reason in each case. 

116. Has the senate any executive power? Discuss fully. 

117. State three purposes for which the government may prop- 
erly levy taxes. 

118. Define taxes. Mention two kinds of taxes and discuss 
the justice of each. 

119. Distinguish between direct and indirect taxes. 

120. What are the sources of the revenue of the general gov- 
ernment? Does the United States government levy any direct tax 
at the present time ? State in substance the constitutional provision 
regarding the apportionment of direct taxes among the several states. 

121. What are duties? State the manner in which duties are 
collected. What limitation is there to the powers of congress to 
levy duties ? Give the reason for this limitation. 



156 CIVIL GOVERNMENT 

122. Distinguish between ad valorem and specific duties. De- 
fine tariff; reciprocity. 

123. What is an excise duty? On what articles are excise 
duties now laid? 

124. Should congress be given the power to regulate commerce? 
Give reasons for your answer. 

125. Define ports of entry. Give the name of one United 
States port of entry on the Atlantic coast, and one on the Pacific 
coast. 

126. Show the importance of the power possessed by congress 
to borrow money on the credit of the United States. 

127. To what extent is immigration now restricted? What is 
the object of the restrictions? 

128. Show the necessity of the power possessed by congress to 
regulate interstate commerce. 

129. Define bankrupt law. Why is a bankrupt law desirable? 

130. Define piracy. Show the importance of the power pos- 
sessed by congress to define and punish felonies committed on the 
high seas. 

131. Why is the power to declare war vested in congress alone? 

132. Define letters of marque; privateer. What name is given 
to property captured in time of war? What disposition is made 
of such property? 

133. What is naturalization? Describe the process by which it 
is secured in this state. Is the process uniform in all the 
states ? 

134. Define alien; citizen. What differences exist in the duties, 
rights and privileges of aliens, naturalized citizens and natural-born 
citizens ? 

135. What classes of foreigners are refused citizenship in the 
United States ? Why ? 

136. On what ground has the United States claimed the right 
to interfere when railway traffic has been interrupted by strikes ? 

137. What is a copyright and how is it obtained ? State for how 
long a time it is issued. State its purpose. May it be renewed? 

138. What is a patent ? For how long a term is a patent issued ? 
How may it be renewed ? What is the purpose of granting patents ? 

139. Mention the chief peculiarity in the government of the 
District of Columbia. Explain the importance of congressional 
control over the District of Columbia. 



LEGISLATIVE DEPARTMENT 157 

140. In what body is the government of a territory vested? 
What representation has a territory in congress? 

141. What is the restriction in the constitution regarding the 
origin of revenue bills? What is the object of this restriction? 

142. Define impeachment. What officers of the United States 
are subject to impeachment? 

143. Mention (1) two powers of the senate not possessed by 
the house of representatives; (2) one power of the house not pos- 
sessed by the senate. 

144. What is meant by executive session? Which body of con- 
gress holds executive sessions? Mention two purposes for which 
executive sessions are held. On what ground is its abolition 
advocated? 

145. Define treaty. Show the importance of the power of the 
senate to ratify or reject treaties made by the president. 

146. Show the importance of the power of the senate to reject 
nominations made by the president. 

147. In whom is vested the power to try cases of impeachment? 
Give an account of the national court for the trial of impeach- 
ments as to jurisdiction and method of procedure. 

148. Mention five restrictions imposed on congress by the con- 
stitution. 

149. What application of the constitutional provision regarding 
the apportionment of direct taxes was recently made by the su- 
preme court in regard to the income tax law? 

150. Give the provision of the constitution in regard to (1) priv- 
ilege of the writ of habeas corpus, (2) bills for raising revenue, 
(3) drawing of money from the treasury. 

151. Define appropriation. Show the importance to the people 
of the constitutional provision regarding appropriations. 

152. Define writ of habeas corpus. Explain the importance of 
this writ as a protection to the right of personal liberty. 

153. Define bill of attainder. 

154. What is an ex post facto law? Are there any such laws 
in the United States ? Give a reason for your answer. 

155. What is meant by a title of nobility? Why does the con- 
stitution forbid congress to grant such a title? 

156. Is an income tax a direct tax under the constitution? 
State your authority. 



CHAPTER X 

LEGISLATIVE DEPARTMENT: ITS WORKING 

193. The Senate-chamber. The work of the national 
legislature is carried on in different parts of the capitol, the 
senate- chamber occupying a part of the north wing, the 
chamber of the house of representatives the south. The 
room occupied by the senate, naturally much the smaller of 
the two, is rectangular in form, the seats being arranged 
semicircularly facing the chair of the presiding officer, which 
occupies a raised marble dais at the end of the room. The 
seats are arm-chairs, each with its desk. Around the four 
sides of the room run galleries, one of which is reserved for 
the president of the United States. The open space back of 
the senators' chairs is furnished with sofas, and into this sen- 
ators may bring visitors. The bare aspect of the walls, un- 
broken by windows, for the room is lighted from above, is 
somewhat relieved by a few pictures. The democratic sen- 
ators occupy the right side of the room, the republicans the 
left; but because of the semicircular arrangement of the 
seats they face the chair, not each other. 

194. Chamber of the House. The chamber occupied by 
the house is much larger, so large indeed as to make speak- 
ing there a difficult task. Like the senate- chamber, it is 
lighted from above and supplied with huge galleries running 
round all four sides and capable of seating 2,500 people. 
As in the senate, the seats of the members, revolving chairs 
and desks, are arranged in concentric rows about the speak- 

158 



LEGISLATIVE DEPARTMENT 159 

er's marble chair on its raised platform. Below and in 
front of the speaker rests the mace, and here too are seated 
the clerks and official stenographers, with the sergeant-at- 
arms to the right. As in the senate- chamber, there is an 
open space furnished with sofas back of the members' seats, 
to which certain visitors are admitted. 

195. Character of Members. In the character of their 
members the two houses show a somewhat marked differ- 
ence, the senate containing a considerably larger proportion 
of men of superior intellectual capacity, political experience, 
and personal dignity. The great majority of the senators 
are successful lawyers, many of whom still practise before 
the supreme court; and there are many ex-governors, ex- 
representatives, ex-state judges, and ex-state legislators. In 
the senate of the 58th congress there were 20 ex-governors, 
4 ex-judges, and 33 ex-representatives. This means, that 
we have in the senate a body of men possessed already 
of considerable political training, whose political efficiency 
is sure to be increased by the training they will get as 
senators. This is not to say that the senate is made 
up of men different in kind from those in the house. Like 
the representatives, the senators are for the most part active 
politicians, who have made their way by means of the ordi- 
nary political methods; but the senate, because it confers on 
its members more power and greater dignity, a longer term 
of service and a more independent position, has proved 
more attractive to men of ability and ambition and has been 
able to draw to itself the ablest of those who have chosen a 
political career. In the house, as in the senate, lawyers are 
numerous, though they are for the most part not leaders in 
their profession. The rest are recruited from the ranks of 



160 CIVIL GOVERNMENT 

the manufacturers, agriculturists, bankers, and journalists. 
Great railroad men, like great lawyers, are rare, and for the 
same reason. The attractions of a career in the house are 
not sufficient to overcome those of a successful practice at 
the bar or of a great railway business. Unlike the senate, 
the house of representatives has few very wealthy members, 
though few are very poor. Taking the house as a whole, it is 
not made up of men of the highest culture or the widest infor- 
mation, though there is no lack of character, shrewdness, and 
keen, if limited, intelligence. If they lack breadth of view, it 
is due to lack of opportunity rather than to natural incapacity. 
196. Methods of Legislation. So much for the men by 
whom the work of national legislation is conducted. Let 
us now see something of the methods in use in the making 
of laws. All laws enacted by the national legislature make 
their first appearance in that body in the form of bills. A 
bill is simply a form or draft of a proposed law, and may be 
very radically changed before it is finally enacted. The 
constitution provides for three ways in which a bill, once 
introduced into the legislature, may become a law. (i) It 
may be passed by a majority of both houses and signed by 
the president. This is the normal way. (2) It may, how- 
ever, after passing both houses, meet with the disapproval 
of the president. Thereupon it is returned without his sig- 
nature to the house in which it originated, his objections are 
entered upon the journal, the bill is reconsidered, and may 
be repassed by a two-thirds vote of both houses, the vote 
being taken by yeas and nays. It then becomes a law with- 
out the president's signature. (3) It may be passed by a 
majority of both houses and sent to the president, who may 
neglect to return it within ten days, Sundays excepted. In 



LEGISLATIVE DEPARTMENT 161 

that case, also, it becomes a law without the president's 
signature, unless congress adjourns in the meantime. The 
constitution does not, however, attempt to lay down rules 
as to the means by which congress shall accomplish the 
work intrusted to it. That body having been created, and 
its powers and limitations clearly defined, it is left to work 
out its own salvation and evolve its own methods. As the field 
of legislation has grown wider and more complicated with 
the growth of the nation, the methods of dealing with it have 
also grown more complex, so that we cannot hope here to 
follow them in detail. We must be content if we can un- 
derstand clearly the more important features of our system 
of legislation. 

197. Stages of a House Bill. 1 In order that a bill may be 
enacted into law it must pass through the following stages. 
First, it must be introduced. If it is introduced in the 
house, this is done by handing it to the speaker or laying 
it on his desk, in case it is a public bill; or by handing it to 
the clerk of the house, in case it is a private bill. When 
reached in the order of business, the bill is read for the first 
time by title only and is then referred by the speaker to its 
proper committee. In the committee the bill comes up for 
discussion, after which the committee may decide either not 
to report it at all, to report it so late in the session that no 

1 In the senate the method of procedure is as follows: Each morning 
the presiding officer of the senate calls for the presentation of bills, resolu- 
tions, and petitions, and the senators, each as he may secure recognition, 
present such bills as they may desire. In presenting a petition the senator 
states briefly its purport and asks its reference to the appropriate committee. 
When a bill is offered, it is carried by a page to the clerk's desk, the title 
is read and an appropriate reference ordered by the presiding officer, unless 
the senate, by a vote, itself directs the reference. 



1 62 CIVIL GOVERNMENT 

action can be taken upon it, to report it adversely, or to re- 
port it favorably. If the bill is dropped in committee it is, 
of course, "killed" without actually reaching the house at 
all. If it is reported adversely by the committee, it is gen- 
erally dropped by the house without debate, so that in 
general only those bills that are reported favorably by the 
committees are actually considered by the house. When re- 
ported, it is read a second time, this time in full, and is then 
placed on the calendar. This does not necessarily mean 
that it will come up at some definite time for further con- 
sideration. It may never get farther than the calendar, its 
fate depending less upon its importance than upon the skill 
and energy of the member who has it in charge. If a bill 
succeeds in reaching a third reading it is read by title only, 
unless a reading in full is demanded. The question is then 
put, "Shall the bill pass?" and the debate follows. When 
the "previous question" is called for, the debate is closed 
by the member reporting the bill, and the vote is taken. 
If the bill passes the house, it is signed by the speaker and 
the clerk and is then taken to the senate. Here it is at 
once referred by the presiding officer to its appropriate com- 
mittee, after which it passes through practically the same 
stages as in the house. If it passes the senate unamended, 
it goes to the president for his signature; but either house 
has the power of amending the bills of the other, and an 
amended bill must be returned to the house in which it 
originated and the amendment must be accepted before it 
can be regarded as passed by the two houses. In case either 
house refuses to accept an amendment of the other, the bill 
fails to become a law ; or a conference committee is appointed, 
consisting of members from the senate and house committees 



LEGISLATIVE DEPARTMENT 163 

concerned with the bill, and a compromise may be agreed 
upon. The different methods of disposing of bills that 
have passed both houses of the legislature have already been 
considered (§ 196). 

198. The Committee System. The process of legislation 
thus described seems comparatively simple; as a matter of 
fact there is much here requiring explanation and comment. 
Let us look first at the committee system. It is almost in- 
evitable when a great nation like our own vests its law- 
making power in a representative body, that that body, if 
it is truly representative, should attain very considerable 
size. One of the most difficult problems of representative 
government is this one of getting large assemblies to per- 
form the work of legislation promptly and efficiently. Two 
plans for solving the problem have been worked out. One 
is the plan of having the majority party in the legislative 
body appoint a small committee of leaders to draft the ne- 
cessary measures, which are then adopted and intrusted to 
this group of leaders for execution. These leaders are held 
responsible. If their measures meet with the approval of 
the people, they can count on retaining the support of the 
majority in the representative body. If not, the opposing 
minority will become a majority and a new group of leaders 
will be substituted. This is in brief the English plan of 
solving the problem, the cabinet or ministerial system of 
government. The other is the plan of dividing the legis- 
lative body up into a number of small groups, each with its 
own field of action and each independent of the rest, the 
legislative body as a whole having the power either to adopt 
or reject the suggestions of the groups in regard to the mat- 
ters intrusted to them. This is the congressional plan of 



164 CIVIL GOVERNMENT 

government, the committee system, by which our legislature 
accomplishes its work. 

199. The Committees. 1 It is impossible here to review the 
history of the committee system in the United States, inter- 
esting though it is. A description of it as it exists and works 
at present must suffice. There are now in the house of rep- 
resentatives 48 regular committees, and 10 select com- 
mittees, each constituting what Senator Hoar has called 
a " little legislature," so far as the management of its 
own particular business is concerned. In addition to tkese 
the house may at any time create select committees for 
special purposes, such as the conference committee, men- 
tioned above, for the purpose of conferring with a like com- 
mittee from the senate. The house may also at any time 
go into ''committee of the whole," i.e., the house may re- 
solve itself into a committee, in order to debate more freely 
some measure then pending. When this is done the speaker 
calls some other member to the chair and the special rules 
of the house are suspended. By far the greatest part of the 
work of congress is done in the regular standing committees, 
which are appointed by the speaker at the beginning of each 
new congress, and to which all bills are referred. Among 
the most important of the standing committees of the house 
are the committees on rules, on ways and means, on appro- 
priations, elections, banking and currency, accounts, rivers 
and harbors, judiciary, foreign affairs, and military affairs. In 
the senate there are 32 standing committees and 12 select com- 
mittees. There are also three joint standing committees. In 
the senate, it will be remembered, the committees are selected, 
not by the presiding officer, but by the senate itself. The 

1 Encyclopedia Americana, Vol. V, Article on the Congress of the 
United States. 



LEGISLATIVE DEPARTMENT 165 

most important of the senate committees are those on finance, 
on appropriations, foreign affairs, privileges and elections, 
judiciary, and commerce. It is by no means always certain 
to what committee a bill should be referred, and this may 
become a matter of considerable importance to the fate of 
the bill, since, of two possible committees, one may be 
favorable, the other hostile. The disposition to be made of 
petitions, memorials, and private bills is indicated on them 
when they are handed to the clerk by the members intro- 
ducing them. Other bills are regularly referred to their 
proper committees by the speaker, but his action may be 
changed in three ways: (1) by unanimous vote of the house; 
(2) on motion of the committee claiming jurisdiction; (3) 
on the report of the committee to which the bill has been 
referred. If a dispute arises as to the reference of the bill, 
it is settled by vote of the house. 

200. Power of the Committee. When a bill has once been 
referred, the power of the committee over it is rarely ques- 
tioned. Committee meetings for the consideration of bills 
are usually secret, and the public has no means of knowing 
how individual committee members have voted or what 
influences have been brought to bear on the committee. 
Open meetings for taking evidence on the bill and for hear- 
ing the arguments of its advocates and opponents are often 
held; but, unless the measure is one in which public interest 
is already excited, the newspapers rarely report the pro- 
ceedings. Nominally the powers of the committee are lim- 
ited to the consideration of bills submitted to it, i.e., it has 
no right to initiate bills of its own; but it may and does 
amend as freely as it chooses the bills submitted, frequently 
transforming them completely. Moreover, if it desires 



166 CIVIL GOVERNMENT 

legislation on a subject concerning which no bill has been 
introduced, it can readily procure the introduction of the 
necessary measure. We have already seen that the com- 
mittee may practically "kill" a measure by reporting it 
adversely, by reporting it too late in the session, or by not 
reporting it at all; and by the employment of one or the 
other of these methods the vast majority of the bills intro- 
duced meet an early death. In the long session of the 56th 
congress there were introduced into both houses 12,152 bills 
of which only 1,215 were enacted into law, i.e., about nine- 
tenths of the measures introduced failed to pass. The 
house may, if it suspects a committee of "smothering" a 
bill that public sentiment favors, order the committee to 
report it, or it may transfer the bill to another committee; 
but these restraints upon the power of the committee are 
rarely applied. 

201. Reporting Bills. Even after the rigid sifting to which 
the measures introduced are subjected by the committees, 
there remains a great number of bills to be reported, and 
the house can afford but a very limited time for hearing and 
discussing the report of each committee. With the excep- 
tion of a few privileged committees — such as the one on 
rules, the one on ways and means, and the one on appro- 
priations, which may report at any time — each committee 
is allowed on the average about two hours for making its 
report for the whole session. This allows an extremely 
limited time for debate, and the result is that the house is 
practically forced to adopt the recommendations of the 
committees in order to accomplish anything at all. The 
member reporting the measure, usually the chairman of the 
committee, has the privilege of opening and closing the de- 



LEGISLATIVE DEPARTMENT 167 

bate. He is allotted an hour in which to explain and defend 
his measure. He seldom, however, uses the whole of his 
time, but "yields the floor" for brief speeches to other mem- 
bers, both friends and opponents of the bill, previously 
agreed upon. He thus virtually controls the debate. At 
the end of the allotted period he moves that the report be 
accepted and at the same time " moves the previous ques- 
tion." This cuts off further amendment and debate, and 
the bill is voted upon. 

202. Log-Rolling. While it is doubtful whether there is 
ordinarily any great amount of unmitigated bribery prac- 
tised in securing legislation, the milder form of political 
" jobbery" known as "log-rolling" is not infrequently re- 
sorted to. This device is used both while the bill is still in 
the hands of the committee and after it is reported to the 
house in case there is any danger of its meeting with real 
opposition on the floor. It is a bargain struck between 
members, each of whom has "an axe to grind." "You help 
me with my measure and I'll help you with yours," is the 
arrangement; and thus votes enough are secured in the com- 
mittee or friends enough on the floor of the house to pass a 
measure that would otherwise be rejected. 

203. Filibustering. In spite of "log-rolling" and similar 
devices, however, the course of legislation does not always 
run so smoothly as the description given above might lead 
one to suppose. It has happened not infrequently that the 
opponents of a measure, while not numerous enough to 
prevent its passage if it were allowed to come to a vote, are 
still strong enough to obstruct business and prevent its being 
voted upon, with the object of extorting a compromise from 
the supporters of the measure. This process is known as 



168 CIVIL GOVERNMENT 

"filibustering." It consists in the making of all sorts of 
motions that can delay the business in hand — motions to 
adjourn, motions to take a recess, and calling for the yeas 
and nays on either of these questions. The last is an ex- 
tremely effective and annoying means of obstructing busi- 
ness; first, because it consumes so much time, and second, 
because it is permitted by a rule that the house cannot alter, 
resting as it does on an express provision of the constitution. 
204. Methods of Voting. In order to understand these 
tactics clearly we must know something of the methods of 
voting employed by the house. Ordinarily in taking the 
vote on a question the presiding officer simply calls in turn 
for the "ayes" and "noes," and judges by the volume of 
sound as to whether it has been carried or lost. If, how- 
ever, a doubt exists, a division is taken in one of three ways: 
either (i) those in favor and those opposed rise successively 
and are counted by the speaker; or, (2) if he is still in doubt 
or if a count is called for by one-fifth of those present, the 
speaker appoints two tellers, who stand in the middle gang- 
way and count, as the members pass between them, first 
those who vote in the affirmative and then those who vote 
in the negative; or, (3) if the yeas and nays are demanded by 
one-fifth of those present, that method is adopted. The 
clerk calls the roll of the house, each member who votes an- 
swering aye or no to his name. This usually consumes an 
hour or more. The roll is then called a second time in order 
to give those an opportunity to vote who did not vote on the 
first call, or to allow others to change their votes. Since 
the constitution provides that the yeas and nays must be 
taken on any question — questions of adjournment as well 
as questions of substance — at the demand of one-fifth of 



LEGISLATIVE DEPARTMENT 169 

those present, it is easy to see how potent a means of ob- 
struction this may be made. 

205. Restraint of Filibustering. Of late the house has 
adopted somewhat stringent rules to prevent filibustering, 
rules as stringent, perhaps, as are at all necessary. It should 
be remembered that it is a method that can be used suc- 
cessfully only by a large minority, fertile in expedients; and 
that the minority party will rarely combine for this purpose 
except on important questions. Moreover, if the question 
is one in which public interest has been awakened, the party 
that employs such obstructive tactics renders itself liable to 
popular disapproval, a risk that it is rarely willing to take. 
Since, in extreme cases, the device of " filibustering " may 
be used as a safeguard against the abuse of the system of 
closure of debate by means of the "previous question," per- 
haps it would not be wise to prevent its employment alto- 
gether, even if that were possible. 

206. Closure of Debate. In a legislative body so large as 
the house of representatives, it is necessary that every pos- 
sible means of expediting business be employed. We have 
already seen that one such means is found in the adoption 
by the house with little serious question of the recommenda- 
tions of the committees. Another is the system of closure 
of debate just mentioned. The debate is usually closed by 
"moving the previous question" in the form, " Shall the main 
question now be put?" If this is ordered (and the motion 
for the previous question cannot itself be debated) the house 
must at once proceed to a vote on the main question. Any 
member may move this closure of debate without permis- 
sion from the speaker, and it may be passed by a bare 
majority of those present. In the senate no rule of closure 



170 CIVIL GOVERNMENT 

exists, the small size of the body and its sense of its own 
dignity both operating to make such a 'rule less necessary 
than in the house. 

207. Advantages and Disadvantages of the Committee 
System. In the foregoing discussion of the committee sys- 
tem it has already been suggested that it possesses both 
advantages and disadvantages. These may now be pointed 
out more definitely. Its chief advantages are: 

(1) It kills off worthless bills at an early stage of their 
existence, thus preventing waste of time on the part of the 
house. 

(2) Through it the house can accomplish vastly more 
legislation than , would be otherwise possible, though it runs 
the risk of accepting the bad work of its committees as 
well as the good. 

(3) It promotes specialization in legislative work. Un- 
der it each leader in the house may be assigned the work 
for which he is specially fitted, and every subject of legis- 
lation may be put into the hands of those members who 
know most about it. 

(4) It makes it possible for congress to subject the ad- 
ministrative departments to investigation at any time. The 
committee cannot punish the departments for maladmin- 
istration, but it can make public the condition of affairs and 
subject them to public censure. 

(5) It makes possible cooperation between the executive 
and the legislative departments. Cabinet members cannot 
urge their measures on the floor of the house, but they may 
do so before the committees. 

On the other hand the following disadvantages of the sys- 
tem have been cited: (1) It breaks up the unity of the 



LEGISLATIVE DEPARTMENT 171 

house; (2) it cramps debate; (3) it lessens the harmony of 
legislation; (4) it facilitates corruption; (5) it reduces re- 
sponsibility; (6) it dissipates the ability of the house into inde- 
pendent groups; and (7) it lowers the interest of the nation 
in the proceedings of congress. 1 How the evils of our com- 
mittee system are to be remedied while its advantages are 
retained is one of the problems of practical politics for 
American citizens. 

208. The Speaker. One more striking feature of our 
legislative system is the power over legislation intrusted to 
the speaker of the house of representatives. One writer calls 
him "the second, if not the first, political figure in the United 
States;" while another says of him that he is "the most in- 
teresting and important legislative officer in the American 
Commonwealth, if not in the world." We borrowed our 
speaker from the English house of commons, but we have 
radically changed his character. The English speaker, no 
matter what his political affiliations or his standing in his 
party before election, must immediately on election forget 
his party and become simply a fair and judicial presiding 
officer. The American speaker, on the other hand, is, and 
is expected to remain, a party leader, using his office for 
party purposes. This does not mean that he is privileged 
to use unfair means for furthering party projects or that he 
may wrest the rules of the house from their obvious meaning 
in order to secure a party advantage ; but he may make the 
fullest possible use of any means that his office legitimately 
places in his hands for furthering the interests of his party. 

209. Sources of His Power : Appointment of Committees. 
His power over legislation is given him in three ways: (1) 

1 Woodburn, pp. 284 seq. 



172 CIVIL GOVERNMENT 

through his power of appointing committees; (2) through his 
power of granting or withholding recognition to a member 
desiring to address the house; (3) through his position as 
chairman of the committee on rules. We have already 
seen that in addition to his power of appointing all the house 
committees with their chairman, the speaker has also the 
right to appoint the chairman of the committee of the whole. 
If we bear in mind how nearly absolute is the power of these 
committees over legislation, we can gain some idea of the 
immense influence exercised by the man who can practically 
make them what he chooses. In making up his committees 
he is bound to consider sectional and party interests as 
well as his own personal obligations; but beyond that he 
works with a free hand. He may secure or prevent legis- 
lation upon certain subjects and may direct it along such 
lines as he wishes by appointing upon the proper committees 
men who will act in accordance with his views; and he may 
enhance the influence of his own, that is of the majority 
party, and weaken that of the minority, by seeing to it 
that the best men of the minority are wasted upon unim- 
portant committees, while their insignificant men are given 
places on important ones. 

210. Recognition. Through the speaker's power of rec- 
ognition he exercises almost as much influence over the, 
course of legislation as through his power of appointing the 
committees. Originally the rule was that the speaker should 
recognize the member who first asked for recognition. In 
present practice there are few limitations on his power to 
recognize whom he pleases. Ordinarily it is customary for 
him to recognize the chairman of the committee, i.e., to 
recognize a committee in the person of its chairman, in 



LEGISLATIVE DEPARTMENT 173 

preference to an individual member. Similarly, while a 
bill is passing through its various stages, preference is given 
to the member who has it in charge. Custom has placed 
upon him a few other restrictions also, but in emergencies 
he may use his power of recognition in such a way as to give 
him absolute control of legislation. He may prevent a meas- 
ure to which he objects from being voted upon at all by re- 
fusing recognition to any member who wishes to bring it to 
a vote. The only real limitation upon his absolute 
power in the matter of recognition is the possibility of 
calling down upon himself the disapproval of his own party 
members. 

211. Committee on Rules. The third source of the speak- 
er's power over legislation is to be found in his chairmanship 
of the committee on rules — a small committee made up 
of only five members, three from the majority party and two 
from the minority, but a committee which has in recent 
years become by far the most powerful one in the house. 
Its three majority members are the ablest and most experi- 
enced members of their party, the party leaders. Under ex- 
isting rules this small committee has absolute power to de- 
cide what business shall come before the house. This it 
does by means of its exclusive power of initiating the special 
order (an order of the house naming a special time for the 
consideration of a measure). The power of the committee 
has, of course, been given to it by vote of the majority in 
the house and could be taken away from it in the same man- 
ner. That it is permitted to retain it is due to the fact that 
some such directing committee is necessary to enable a 
body so large to accomplish its work. 

212. The Party Caucus. One other agency employed by 



174 CIVIL GOVERNMENT 

congress to facilitate the work of legislation should be no- 
ticed. This is the organization of parties in congress. If 
we are to have efficient and successful party government, it 
is clear that some sort of organization is necessary. The 
party must devise some means of informing its members of 
its wishes in regard to the measures to be voted on, some 
means of securing united action from its members on im- 
portant questions, some means of noting changes of opinion 
among its members. This work is accomplished by means 
of the party caucus. At the beginning of every congress 
caucus committees are chosen, whose business it is to call 
the caucus meetings and to act as general party managers in 
the legislature. In matters of minor importance party mem- 
bers are allowed a good deal of freedom; but if a measure is 
deemed important enough to require concerted party action, 
it is made a "caucus measure." A meeting of all the party 
members is called and all the force of party influence is 
exerted to secure a unanimous party vote. The member 
who "goes into caucus" on a measure is considered in honor 
bound to vote upon it in the house in accordance with the 
wishes of his party, and "bolting" is very rare. 

213. The Necessity for Expediting Business. We have 
seen something of the way in which the house works and of 
the variety of agencies it employs for expediting business. 
The necessity for the employment of such agencies becomes 
obvious when we consider how very large is the number of 
bills introduced every year. In the 37th congress (1861-63) 
1,026 bills were introduced. In the 57th there were 22,000. 
The proportion of those that pass is, of course, very small. 
The vast majority never reach a third reading. Many bills 
are introduced in the expectation that they will be "buried"* 



LEGISLATIVE DEPARTMENT 175 

in committee or on the calendar. They are introduced to 
satisfy a constituency, to gratify some private or local in- 
terest, and the house understands well enough what their 
fate is to be. Most of the bills introduced are private bills 
— local or personal in character, bills for satisfying claims 
against the government, granting pensions, etc. 

214. Contrast between the Houses. More than one writer 
has described the impression made upon him on seeing con- 
gress at work, and all have noted the contrast between the 
two houses. About the senate there is an air of gravity and 
dignity. It has been described as making somewhat the im- 
pression of a diplomatic congress. At the same time it is 
"modern, severe, practical." "The faces are keen and for- 
cible as of men who have learned to know the world and have 
had much to do with it." The house, on the other hand, 
makes a general impression of disorder, due in part to "the 
raising and dropping of desk lids, the scratching of pens, 
the clapping of hands to call the pages, . . . the pattering 
of many feet, the hum of talking on the floor and in the 
galleries;" but due in part also to an "absence of dignity 
both in its proceedings and in the bearing and aspect of in- 
dividual members." Yet it may be questioned whether the 
house is not after all in some respects the more impressive 
body of the two. Mr. Bryce says of it: 

"This huge gray hall, filled with perpetual clamor, this 
multitude of keen and eager faces, this ceaseless coming and 
going of many feet, this irreverent public, watching from the 
galleries and forcing its way onto the floor, all speak to the 
beholder's mind of the mighty democracy, destined in an- 
other century to form one-half of civilized mankind, whose 
affairs are here debated. If the men are not great, the in- 



176 CIVIL GOVERNMENT 

terests and the issues are vast and fateful. Here, as so often 
in America, one thinks rather of the future than of the pres- 
ent. Of what tremendous struggles may not this hall be- 
come the theatre in ages yet far distant, when the parlia- 
ments of Europe have shrunk to insignificance?" 

215. Desirability of Career in Congress. It would seem 
as if a career in congress, the supreme legislative body of one 
of the greatest nations in the world, ought to offer attrac- 
tions at least equal to those of the professions and the higher 
spheres of commercial and industrial life. As a matter of 
fact, however, political life attracts comparatively few of the 
most highly gifted and ambitious. Not only is the congress- 
man's tenure of his position very precarious, but the position 
itself offers little opportunity for distinction. The real 
work of legislation is done in the committee, and the world 
sees and knows nothing of it. Real merit and ability will 
gain recognition in congress as everywhere else, provided its 
possessor is permitted to remain there long enough to make 
his influence felt, but comparatively few are so permitted. 
This is particularly true of the house. By the time a new 
member has mastered thoroughly the procedure of the house 
his term is at an end, and he has had no opportunity to dis- 
tinguish himself. If he is returned for a second term, he is 
one of a fortunate few. The position of senator is naturally 
more desirable than that of representative. He has more 
power, more dignity, a more permanent and more inde- 
pendent position. In some respects, indeed, the position of 
senator is the most desirable in the political world. It is 
more permanent than that of president or cabinet officer, it 
requires less labor, it involves less vexation by office-seekers; 
but it is open to only a few. Of those who seek a political 



LEGISLATIVE DEPARTMENT 177 

career the great majority must content themselves with the 

much less attractive work of the house. 

Library References. — Ashley, §§260-263, 283-291, 298-300; Macy, 
Chap. XXXIV; Macy, First Lessons, Chap. XVII; Dawes, Chaps. 
IV-V; Bryce, Vol. I, Chaps. XII-XV, XIX; Hinsdale, Chap. XXIV; Wilson, 
§§ 1061-1062, 1071-1077, 1080-1081; Congressional Directory; Wilson, 
Congressional Government, Chap. II, pp. 168-169, 193-219, Chap. VI; 
Harrison, Chap. Ill; Alton, Chaps. V-VI, VIII, XI, XV-XVI, XX-XXIII, 
XXV-XXVIII, XXX-XXXII; Lalor, Article on Parliamentary Law; 
Woodburn, pp. 223-226, 230-231, 257-301, 313-315; Fiske, pp. 228-230. 

QUESTIONS ON THE TEXT 

157. What are legislative bills? Where may they originate 
under the national government? What is the difference between a 
bill and a law? 

158. State the provision of the constitution regarding bills ve- 
toed by the president. Give a reason for this provision. 

159. Give the different steps by which a bill becomes a law. 

160. What are legislative committees? What are their rela- 
tions to legislation? 

161. Explain the necessity of legislative committees. State 
two evils that may result from transacting business through such 
committees. 

162. State the advantages of committees in legislative bodies. 
What is meant by committee of the whole? State an advantage 
of considering a bill in committee of the whole. 

163. What power has the speaker of the house over legislation? 

164. How is a bill introduced in the senate? in the house? 

165. If a committee attempts to smother a bill, how may con- 
gress regain possession of it ? 

166. How is a vote on a bill taken? In cases of doubt,, what 
means may be resorted to ? 

167. Explain the meaning and use of the following terms as 
applied to congress: caucus, log-rolling, jobbery, bolting, special 
order, counting a quorum, filibustering. 

168. Which house of congress is the more dignified, and why? 
Discuss fully. 

169. Define the "cabinet, or ministerial system" of govern- 
ment; the "congressional, or committee system." 

170. In how many ways may a committee "kill" a measure re- 
ferred to it ? In what other way may a committee shape legislation ? 



CHAPTER XI 

EXECUTIVE DEPARTMENT: PRESIDENT AND VICE- 
PRESIDENT 

216. Executive Department. We come now to the con- 
sideration of another of the three great departments essen- 
tial to every complete government — the executive. We 
have seen how the constitution provided for the creation 
and organization of a law-making department and endowed 
it with powers, and we have learned something of the way 
in which this branch of government has developed in actual 
practice and of the means by which it performs its func- 
tions. It is our task now to ask the same questions 
in regard to the law- enforcing department: how was it 
created ? how is it organized ? what may it do ? how does 
it do it? 

217. The Convention and the Presidency. The makers of 
our constitution believed firmly in the separation and co- 
ordination of the three branches of government. To a 
greater or less extent this separation existed in the govern- 
ments of the various states; and their undoubted superiority 
to the government of the confederation, in which such ex- 
ecutive functions as existed were united with the legislative, 
was attributed to this fact of separation. The desire to 
establish a similar separation of powers in the national gov- 
ernment with only so much interaction as was absolutely 
necessary in order to prevent the usurpation of power by 
any one of the three branches, is seen very clearly in the 

178 



EXECUTIVE DEPARTMENT 179 

organization of all of them. It is seen particularly in the 
creation of what had not before existed, namely, the office 
of President of the United States. The congress of the con- 
federation had had a presiding officer whom they called a 
president ; but aside from the duty of presiding at the meet- 
ings of congress, his function differed not at all from those 
of his colleagues. He was in no sense the executive head of 
a government. 

218. A Difficult Question. The problems with which the 
convention struggled in creating and organizing a separate 
executive department seem to have been in some respects the 
most troublesome with which they had to deal. Almost 
every question that arose in connection with the matter called 
forth serious debate. Whether there should be a single ex- 
ecutive or an executive body or council, what should be the 
length of the term, whether or not the executive should be 
reeligible, what should be the manner of choice — on all 
these points widely different opinions were entertained in 
the convention. One of them, the question as to the method 
of choice, is said to have occupied a seventh of the whole 
time of the convention. 

219. Plan Adopted. We are now so accustomed in all 
our governments, national, state and local, to the practice of 
vesting executive authority in a single person, that the idea 
of a plural executive seems strange to us; yet in the conven- 
tion the plan of having a plural executive was warmly ad- 
vocated. To many of the men of that period the idea of a 
single executive savored of monarchy, and monarchy they 
could not abide. It was argued in the convention that the 
people would never ratify a constitution that provided for a 
single executive. On the other hand, the failure of the con- 



180 CIVIL GOVERNMENT 

federacy had convinced many that what the country needed 
above all things was a strong executive, capable of acting 
vigorously and promptly; and this it was argued could never 
be secured through a council or assembly. This view finally 
prevailed and a single executive was agreed to, but the con- 
vention took good care to safeguard the liberties of the people 
in a variety of ways. They devised a mode of election that 
was intended to make him independent of the national 
legislature and free to devote himself solely to the interests 
of the whole people ; they made him subject to impeachment 
and removal in case he betrayed the trust reposed in him; 
they limited his term of office; they gave the senate a share 
with him in certain very important executive functions; and 
they gave the control of the public purse into the hands of 
congress. It would seem sufficiently obvious that such limi- 
tations as these are hardly compatible with monarchical 
power such as the men of that time stood in dread of; yet it 
was deemed wise to attempt to prove in The Federalist 
that no very close analogy existed between the king and 
the president of the United States. 

220. The Qualifications for the Presidency required by the 
constitution are that the candidate shall be a natural-born 
citizen or a citizen at the time of the adoption of the con- 
stitution, that he shall be at least thirty-five years of age, 
and that he shall have been for fourteen years a resident 
within the United States. The clause making eligible those 
who were citizens at the time of the adoption of the consti- 
tution, even though foreign born, has, of course, become in- 
operative. It was inserted in order not to bar out such men 
as Hamilton and Wilson, who, though not born within the 
United States, were among the ablest, most devoted, and 



EXECUTIVE DEPARTMENT 181 

most patriotic citizens of the young republic. The phrase 
"natural-born citizens" has been interpreted to mean born 
within the jurisdiction of the United States. Thus children 
born to American citizens on American vessels in foreign 
ports, or to our ambassadors, consuls, or other representa- 
tives in foreign countries, or to American citizens travelling 
or temporarily sojourning abroad, do not become ineligible 
to this office. On the other hand, children born in this 
country to foreign representatives are not eligible. 

221. Term and Re eligibility. Widely varying opinions 
were held in the convention as to what should be the length 
of the president's term of office, and the question was closely 
bound up with that of his reeligibility and the manner of 
election. Four years was the term fixed by the constitution, 
and the president was made reeligible. Some suggested 
three years and many favored a longer term, five, six, seven, 
and ten years being among the suggestions. Hamilton, in 
his desire to create a strong executive, favored a life term 
subject only to removal by impeachment. In general those 
who favored a long term were also in favor of making the 
president ineligible for reelection. Likewise, those who 
favored his election by congress (for that was one of the 
modes of election proposed) thought that he ought not to be 
made reeligible, since that would increase the likelihood of 
his intriguing with congress for reelection. While the con- 
stitution places no limit on the reelection of the president, 
the custom of reelecting but once has become so firmly 
fixed that it would be very difficult to change it. Many now 
question the wisdom of allowing even a second term. They 
argue that under the present arrangement the president is 
likely to be more concerned about being president for two 



1 82 CIVIL GOVERNMENT 

terms than about being a good president for one; and that 
he will in consequence strive to please the party managers, 
and only secondarily to serve the people. 

222. Salary. While the constitution provides that the 
president shall receive compensation for his services, it makes 
no attempt to determine the amount of his salary. It only 
provides that it "shall neither be increased nor diminished 
during the period for which he shall have been elected," 
and that "he shall not receive within that period any other 
emolument from the United States or any of them." Con- 
gress first fixed the salary of the president at $25,000. In 
1873 this was increased to $50,000, and has since remained 
unchanged. In addition to his salary the president is given 
the use of the national "executive mansion," the "White 
House." It may be noted in passing that the cost of main- 
taining the executive branch of our government (including 
the salaries of the president, the vice-president and the sec- 
retary to the president, together with the expenditures for 
the care of the executive mansion and a few other items) is 
extremely small compared with similar expenditures by for- 
eign governments. 

223. Election: Methods Proposed in the Convention. 
These questions of the qualifications, term, salary, etc., of 
the chief executive were the easiest ones with which the con- 
vention had to deal in organizing the executive department. 
They met the most difficult one when they attempted to de- 
vise a method of election. When their work was finished, 
there was no other part of the constitution that they re- 
garded with so much satisfaction as the plan agreed upon; 
yet no other part has failed so completely to fulfil the ex- 
pectations entertained of it. In the convention almost every 



EXECUTIVE DEPARTMENT 183 

possible method of choice was proposed. Some proposed 
that the president be elected by congress; others that he be 
elected by the executives of the states; others by the state 
legislatures; others by electors chosen by the state legisla- 
tures or by the people. Mr. Wilson of Pennsylvania pro- 
posed direct election by the people, apologizing at the same 
time for his suggestion, because he felt that it would appear 
chimerical to the convention. If there existed in the con- 
vention a deep-seated fear of monarchy, there was an almost 
equal distrust of pure democracy. It was not believed that 
the people would possess the information or the discernment 
necessary to enable them to choose the best man for the 
place; it was thought that they would be too much at the 
mercy of demagogues, and that, moreover, to leave the de- 
cision of so important a matter in their hands might result 
in tumult and disorder. On the other hand, if the choice 
were left to congress or any other preexisting body that 
could be tampered with beforehand, there would be danger 
of intrigue and corruption. The convention deemed it de- 
sirable that the people should have some voice in the matter; 
but they thought it wise to place the immediate election in 
the hands of a specially chosen electoral college, who, after 
due deliberation, should choose as wisely as possible. Hence 
the double mode of election. 

224. Method Chosen. As originally wrought out in the 
constitution, this method was as follows: Each state was to 
select, in whatever manner the state legislature might direct, 
a number of electors equal to the number of its senators 
and representatives in congress, but no United States officer 
was to be eligible to an electorship. The electors were then 
to meet in their respective states on a day fixed by law and 



1 84 CIVIL GOVERNMENT 

vote for two persons, one of whom was to be an inhabitant 
of some other state than their own. They were then to 
send sealed to the capital a certified list of the persons voted 
for with the number of votes received by each, and these 
lists were there to be opened by the president of the senate 
in the presence of both houses and counted. The person 
receiving the highest number of votes, provided that number 
were a majority of the whole number of electors, was to be 
president, and the person having the next highest number 
was to be vice-president. If two candidates had an equal 
number and that number a majority, or if no candidate had 
a majority, the house of representatives was to choose the 
president, in the first case from the two that were "tied," 
in the last case from the five highest on the list. The house 
was to vote by states, the whole representation from each 
state voting as one, two- thirds of all the states constituting 
a quorum, and a majority of all the states being necessary 
for election. In case of a tie for vice-president the senate 
was to elect that official. 

225. A Defect Discovered. It will be noticed that ac- 
cording to this provision the electors might vote for two 
persons without designating which one they desired for 
president and which for vice-president. The one receiving 
the greatest number of votes in excess of a majority was to 
be president; and the person receiving the next highest num- 
ber, whether it was a majority or not, was to be vice-presi- 
dent. The result was that in the election of 1800, Jefferson, 
whom the electors desired for president, received the same 
number of votes as Burr, whom they had meant to elect 
vice-president. This gave the power of election to the house, 
and Jefferson was elected, though not without difficulty. 



EXECUTIVE DEPARTMENT 185 

This incident led to the adoption of the Xllth amendment, 
which provides the present mode of election. 

226. The Xllth Amendment. By this amendment it is 
provided that the president and the vice-president shall be 
voted for separately, and that distinct lists of those voted for 
shall be sent to the capital. The votes are to be opened and 
counted as provided before; and in case no candidate has a 
majority, the house is to elect as before, except that they 
are to choose from the three instead of the five highest. If, 
when the choice devolves upon the house, that body fails to 
elect a president before the 4th of March, the newly elected 
vice-president shall act as president. If the electors fail to 
elect a vice-president, that duty devolves upon the senate, 
which makes its choice from the two highest on the list voted 
on for vice-president. In case neither president nor vice- 
president should be chosen before the 4th of March, the 
constitution makes no provision for the succession. 

227. Another Defect in the constitutional provisions for 
election became apparent in the election of 1876. In that 
election there- were 369 electoral votes to be cast, 185 being 
necessary to a choice. Of these Mr. Tilden, the democratic 
candidate, had unquestionably received 184; while Mr. Hayes 
had received 164 undisputed votes. In four states, how- 
ever (South Carolina, Florida, Louisiana and Oregon), with 
21 electoral votes, both parties claimed the election. In all 
of these states both sets of electors had met, voted, and sent 
up certified returns. The question now arose, "Who shall 
decide which return is to be accepted?" All that the con- 
stitution says in regard to the matter is that "the president 
of the senate shall, in the presence of the senate and house 
of representatives, open all the certificates and the votes shall 



1 86 CIVIL GOVERNMENT 

then be counted.'''' The republicans insisted that the vice- 
president, a republican, should decide, since he was presi- 
dent of the senate. The democrats maintained that since 
the count was to be made in the presence of congress, the 
reasonable inference was that that body was to decide upon 
the validity of it. In this case, however, the senate was re- 
publican and the house democratic, so that the only result 
of leaving the decision to congress would be a deadlock. 
The difficulty was temporarily solved by the creation by 
congress of an electoral commission consisting of five sen- 
ators, five representatives, and five justices of the supreme 
court. The vote in the commission, which was made up 
of eight republicans and seven democrats, was given on 
strictly party lines and the republican candidate was elected. 
Later an act was passed by congress requiring the choice 
of electors to be settled by the laws of the state at least six 
days before the meeting of the electors. In case such set- 
tlement is not effected, the dispute is referred to congress, 
and if congress fails to decide, the electoral vote of the state 
is lost. 

228. Time and Method of Choosing Electors. The con- 
stitution gives to congress the right to determine the time 
for choosing the electors in the various states, as well as the 
right to fix the day when the electors shall cast their votes. 
The only restriction is that the day fixed for the final vote 
shall be the same throughout the United States. The day 
first fixed upon by congress was the first Wednesday in De- 
cember, and the choice of the electors by the people was to 
occur thirty-four days earlier. Later the time for choosing 
the electors was changed to the first Tuesday after the first 
Monday in November; while a still later act changed the 



EXECUTIVE DEPARTMENT 187 

time for casting the electoral vote from the first Wednesday 
in December to the second Monday in January, the object 
being to give more time for the settlement of disputed elec- 
tions in the states. The method of choosing the electors 
was left by the constitution to the decision of the state legis- 
latures; consequently it would be possible for them to be 
chosen in a great variety of ways. As a matter of fact, the 
method is now uniform. Electors are chosen in every state 
on a common ticket by direct popular vote. At one time 
the district plan of election was used in some of the states; 
but this had long been abandoned when, in 1891, it was 
revived in Michigan by an act of the legislature. The law 
was contested in the courts, but it was declared constitu- 
tional by the supreme court. It was, however, repealed in 
1893. 

229. Failure of the Electoral College. Such, then, is the 
method of the presidential election as provided by the consti- 
tution and by statute. How does it work in practice ? We 
have seen that in providing the method of double election the 
framers of the constitution were influenced by the belief that 
it would secure the choice of men especially fitted for the elec- 
torship, who would then, unfettered by outside influence, 
make the choice that seemed to them the wisest. Naturally 
they could not foresee the growth of our party system of gov- 
ernment, which was to render their carefully elaborated 
scheme a failure and make of the electoral college a mere 
machine for registering the choice of the people. For this 
is what it has become. Every elector has an unquestion- 
able legal right to vote for whom he pleases ; but he is bound 
by a pledge of honor, by a custom as strong as any law, to 
vote for the candidate of his party. So completely has the 



1 88 CIVIL GOVERNMENT 

elector become a mere party agent, whose sole business it is 
to ratify the choice already made, that in general nobody 
knows and nobody cares what his personal qualifications may 
be. 1 The voter, when he casts his ballot, is in reality voting 
directly for the presidential candidate whose name it has been 
deemed wise, in order to avoid mistakes, to place at the top 
of the ticket, and only incidentally does he vote for the elec- 
tors. This failure, however, of the electoral college to re- 
tain its power of independent choice is probably not much 
to be regretted. With the development of the party system 
the college would have been almost certain to come directly 
under the control of the party organizations, and it is better 
that it should vote at the bidding of the people than at that 
of the party managers, even though the party managers may 
control the popular vote. 

230. A More Serious Defect. Some of the other conse- 
quences resulting from the employment of this method of 
election under the system of party government are more 
serious. The present system of choosing the electors by 
general ticket over the whole state makes the election virtu- 
ally an election by states. The state "goes republican" or 
it "goes democratic," i.e., it elects, with rare exceptions, its 
full complement of electors from a single party, and casts 
the whole number of its electoral votes for the candidate of 
that party. Now it may happen that in one state the plu- 
rality of the winning party is very large and more than 
overcomes the small adverse pluralities in a dozen states, 
while the electoral vote of the dozen states is greater than 

1 Divided state delegations are, to be sure, by no means unknown. Oc- 
casionally this is due to the rejection of a candidate on personal grounds; 
more frequently to other reasons. See Woodburn, p. 127, note. 



EXECUTIVE DEPARTMENT l»9 

that in the one state giving a larger plurality. For example, 
in the presidential election of 1900, Idaho, with three elec- 
toral votes, gave Mr. Bryan a plurality of 2,448 votes; Ken- 
tucky, with thirteen votes, gave him a plurality of 7,975; 
Nevada, with three electoral votes, gave him 2,516, or a 
total plurality in the three states named of 12,939; Michi- 
gan, with fourteen electoral votes, gave Mr. McKinley a 
plurality of 104,584. Thus Mr. McKinley, with 91,645 
more votes than his opponent received, would have been 
defeated in the electoral college by a vote of 19 to 14, if the 
decision had been left to the four states above named. Thus 
it will be seen that the electoral college may be the means 
of defeating the clearly expressed wishes of the people. 
This actually happened in 1888 when Mr. Cleveland received 
a plurality over Mr. Harrison of 95,534. This verdict of 
the individual voters was reversed by the electoral college, 
which gave Mr. Harrison 233 electoral votes as against 168 
for Mr. Cleveland. Moreover, under the present plan the 
struggle is concentrated in a few doubtful states. To win 
or lose them means to win or lose the election, and this nat- 
urally increases the temptation to political corruption in 
those states. 

231. Presidential Succession. The president is removable 
only on impeachment. Only one president, Andrew John- 
son, has been impeached, and he was acquitted. A vacancy 
in the presidential office may, however, occur in a variety 
of other ways — by the death or resignation of the incum- 
bent; by his inability, from whatever cause, to discharge the 
duties and powers of the office; by the refusal of the newly 
elected president to accept the office, though this is not 
likely ever to occur. In case a vacancy does occur in any of 



190 CIVIL GOVERNMENT 

these ways, the vice-president succeeds. Further than this 
the constitution makes no provision for the presidential suc- 
cession, but the deficiency has been supplied by statute. 
By the presidential succession bill of 1886 it is provided 
that in case of the inability of both president and vice-presi- 
dent to perform the duties of the office, the cabinet officers 
shall succeed in the following order: (1) secretary of state, 
(2) secretary of the treasury, (3) secretary of war, (4) at- 
torney-general, (5) postmaster- general, (6) secretary of the 
navy, (7) secretary of the interior, (8) secretary of agricul- 
ture, (9) secretary of commerce and labor. (§ 246.) 
Should one of these officers fail to possess the constitu- 
tional qualifications for president, he is, of course, excluded 
from the succession. 

232. The President's Powers. What are the president's 
powers and duties? Just as we saw that to the national 
legislature are intrusted executive and judicial as well as 
legislative functions, so also we shall find that to an even 
greater extent the executive exercises legislative and judicial 
functions. His executive functions are: 

(1) To be commander-in-chief of the army and navy of 
the United States, and of the militia of the several states 
when called into the service of the United States; 

(2) To make treaties with the concurrence of two- thirds 
of the senate; 

(3) To nominate and, with the consent of the senate, 
appoint ambassadors, other public ministers and consuls, 
judges of the supreme court, and all other officers not other- 
wise provided for by the constitution or by statute; 

(4) To receive ambassadors and other public ministers; 

(5) To commission all officers of the United States; 



EXECUTIVE DEPARTMENT 191 

(6) To take care that the laws be faithfully executed. 
His legislative powers are: 

(1) To sign or veto measures passed by congress; 

(2) To inform congress of the state of the union and 
recommend measures for their consideration; 

(3) To call special sessions of congress; 

(4) To adjourn congress when the houses cannot agree 
upon the time of adjournment. 

His judicial function is to grant reprieves and pardons 
and to commute sentences for offences committed against 
the United States except in cases of impeachment. 

233. Classification not Absolute. This classification must 
not be taken too absolutely, for a moment's consideration 
will show that some of these powers really fall into two 
classes. In making treaties, for instance, the president ex- 
ercises not only executive functions but legislative as well, 
since treaties are a part of the supreme law of the land. 
The appointment of judicial officers, also, while it is strictly 
an administrative act, has a distinctly judicial bearing. 

234. His Legislative Powers. Some of these presidential 
powers require further discussion. Very important are the 
president's legislative powers. In the power to call extraor- 
dinary sessions of congress and to communicate his mes- 
sage he has a real power to initiate legislation. There is no 
legal bar to his constructing and presenting regular bills to 
congress, only the custom has never happened to grow up. 
Instead, the heads of the administrative departments make 
written reports and public recommendations, have private 
conferences with the congressional committees, and use their 
personal influence with party leaders in the house to secure 

1 See Woodburn, pp. 144-145. 



192 CIVIL GOVERNMENT 

the necessary legislation. While the president's annual mes- 
sage may exercise considerable influence on legislation, it 
does not necessarily do so, particularly if the majority in 
congress is not of the president's party. The present plan 
of presenting the president's message is not the original one. 
Washington and Adams appeared in congress in person and 
addressed the two houses assembled in joint-session. Jef- 
ferson inaugurated the present custom of sending the message 
to be read in each house by the secretary or clerk, the most 
frequently alleged reason for the change being that he was 
a poor speaker. Whatever the reason, the custom has be- 
come so firmly fixed that it would be extremely difficult for 
any president to break away from it. 

235. The Veto. The president, however, exercises his 
most effective power over legislation in a negative way by 
means of the veto. We have referred before to the presi- 
dent's veto power (§ 196), but we have not studied fully the 
method of its working. When a bill that has passed the legis- 
lature cOmes to the executive mansion, it is usually sent to the 
head of the department concerned, or, if there is a question 
of its constitutionality, to the attorney- general. The presi- 
dent then takes it up with the report of the department, and 
either signs it or vetoes it in the manner prescribed by the 
constitution. In case congress adjourns within ten days 
(Sundays excepted) after sending a bill to the president, he 
may simply disregard it altogether, neither signing nor re- 
turning it. This so-called "pocket- veto," unlike the regu- 
lar veto, is an absolute one and may be employed very 
effectively to prevent congress from overwhelming the presi- 
dent at the end of a session with a host of bills. It is just 



EXECUTIVE DEPARTMENT 193 

this hasty legislation crowded into the last few days of a 
session that needs the most careful scrutiny, and it is well 
that the president should be given some such power over it 
as that provided by the "pocket veto." 

236. Restrictions on the Veto. The president's regular 
veto is, of course, a restricted one. In the first place, it may 
be overridden by a two- thirds vote of each house, i.e., by 
two-thirds of those present and voting. In the second place, 
the president must approve or disapprove the bill as a whole. 
He cannot veto one item or proposition and give his assent 
to the rest. It is this necessity that gave rise to the custom 
of attaching "riders" to important bills. The "rider" has 
been defined as "an unrelated piece of legislation attached 
to another legislative measure with the purpose of having it 
ride through on the merits of the measure to which it is at- 
tached." They are usually attached to appropriation bills, 
and virtually say to the president: "Sign this measure or 
find your own means for running the government." The 
practice of attaching riders to important bills became com- 
mon; but it gave rise to serious abuse, and public opinion 
has condemned it. 

237. Working of the Veto. The veto power is an extremely 
important one and has worked remarkably well. It may 
prevent inexpedient and unwise legislation, and it must act 
in any case as an appeal to the sober second thought of con- 
gress and the nation. It was never intended to be a positive 
check upon legislation, nor does it in general act as one, but 
it does check overhasty legislation. It was originally given 
to the executive as a means of preventing the legislative de- 
partment from encroaching on his own powers or those of 
the judiciary; but it has come to be used on the much wider 



194 CIVIL GOVERNMENT 

ground of general expediency also, and of this public opinion 
approves. Most of the presidents have made a very spar- 
ing use of the power; and where they have employed it 
freely, their course has in general been approved both by the 
nation at large and by congress, when it came to reconsider 
its action. 

238. Calling Extra Sessions. The power of calling an ex- 
tra session of congress or of either house is granted to the 
president in order to enable him to meet an unforeseen emer- 
gency, such as the necessity of the immediate consideration 
of a treaty, the probability of war, the necessity of preserv- 
ing the credit of the country or providing funds to conduct 
the government. The power of convening congress in extra 
session has been rarely exercised. A special session of the 
house alone has never been called. Special sessions of the 
senate are more common, and it has become customary 
for the outgoing president to call such a session to act 
upon the nominations for cabinet and other officers which 
the new president will make immediately after his inaugu- 
ration. 

239. Treaty-making Power. Another very important pres- 
idential power that is perhaps more legislative than ex- 
ecutive, is the treaty-making power. This power can be 
exercised only with the concurrence of two-thirds of the 
senators present. There is also, of course, the implied re- 
striction that the treaty shall be in all respects constitu- 
tional. The usual steps in the negotiation of a treaty are 
as follows. If friendly relations exist between the two nations 
concerned, the negotiations are conducted at the capital of 
the one from which the suggestion first came. If this is in 
Washington, the secretary of state acts for the United States, 



EXECUTIVE DEPARTMENT 195 

and the minister of the foreign country concerned acts for 
his government. If the treaty is negotiated in some other 
country, the United States minister to that country, or some 
other person or persons appointed by the president, act for 
this government. In either case the president directs the 
general course of the negotiations. A peace treaty closing 
a war is generally negotiated in some neutral capital by 
special commissioners from the two or more nations con- 
cerned. After a treaty has been framed, it is sent to the 
senate, where it is discussed in executive session. The 
senate may approve it as it stands, may reject it, or may 
amend it. If amendments are made, they must be accepted 
by the president and by the other government interested. 
When it has been finally approved on both sides, duplicate 
copies are made, signed by the chief officers of both govern- 
ments, and then exchanged. This is called the " exchange 
of ratifications." The president then publishes the treaty, 
proclaiming it at the same time as a part of the law of the 
land. 

240. The Appointing Power conferred upon the president 
is probably the power that gives him his greatest political 
influence. The necessity of giving him large appointing 
powers grows naturally out of the duty laid upon him to 
"take care that the laws be faithfully executed." It will be 
seen, however, that the constitution gives congress authority 
to reduce very considerably the president's power over ap- 
pointments. "The congress may by law vest the appoint- 
ment of such inferior officers as they think proper ... in 
the courts of law or in the heads of departments." Besides 
the ambassadors and other public ministers, consuls, and 
judges appointed by the president with the consent of the 



196 CIVIL GOVERNMENT 

senate, a large number of other officers whose positions have 
been established by law, among them the heads of the ex- 
ecutive departments, receive their appointments in the same 
way. The president cannot, of course, examine personally 
into the fitness of all his appointments. He must depend 
largely upon the advice of the heads of departments and 
upon the recommendations of senators and representatives 
of his own party from the states in which the office is located. 
Partly in consequence of this fact there has grown up, in the 
case of those appointments requiring the confirmation of 
the senate, a custom that greatly limits the appointing power 
of the president. This is the custom known as "senatorial 
courtesy," by which the senate almost invariably refuses to 
confirm an appointment unless it meets with the approval 
of one or both of the senators in whose state the office is 
located, provided those senators are members of the ma- 
jority party in the senate. 

241. The Life of the President is an extremely busy one. 
Mr. Harrison pictures it thus: "It (the White House) is an 
office and a home combined — an evil combination. There 
is no break in the day — no change of atmosphere. The 
blacksmith, when the allotted hours of work are over, banks 
his fire, lays aside his leather apron, washes his grimy hands 
and goes home. . . . There is only a door — one that is 
never locked — between the President's office and what are 
not very accurately called his private apartments. . . . The 
mail that comes daily to the Executive Mansion is very large ; 
in the early months of an administration it is enormous, as 
many as eight hundred letters being sometimes received in 
a day. . . . Unless the President is very early, he will 
find some callers waiting for him as he passes through the 



EXECUTIVE DEPARTMENT 197 

Cabinet room to his office. ... His time is so broken into 
bits that he is often driven to late night work, or to set up a 
desk in his bedroom, when preparing a message or other 
paper requiring unbroken attention. . . . For the first year 
and a half of an administration the president spends from 
four to six hours of each day talking about things he will 
not have to act upon for months, while the things that ought 
to be done presently are hurtfully postponed. . . . This is 
only an outline of a business day and its surroundings, but 
it will serve, perhaps, to show that the life of the President 
is a very busy one. What contrariety and monotony! One 
signature involves the peace of the nation, another its finan- 
cial policy, another the life of a man, and the next the pay- 
ment of ten dollars from the National Treasury." 1 

242. Great Statesmen and the Presidency. It is generally 
admitted that, taken as a whole, our presidents have not been 
the greatest statesmen that our country has produced. For 
this a variety of reasons has been assigned. Of those who 
choose a political career, only a few, and those not neces- 
sarily the greatest, find opportunity to commend themselves 
to their countrymen in such a way as to secure them a nomi- 
nation to the presidency. The methods of congress in large 
measure cut them off from such opportunities. Further, 
really great men are seldom highly popular men. Mr. 
Bryce has summed up the reasons for the lack of really great 
men in the list of the presidents as follows: "Great men are 
not chosen president, first, because great men are rare in 
politics; secondly, because the method of choice does not 

1 Harrison: "This Country of Ours," pp. 169-179. Since Mr. Har- 
rison wrote this statement a suite of offices has been built for the use of the 
president. 



198 CIVIL GOVERNMENT 

bring them to the top; thirdly, because they are not, in quiet 
times, absolutely needed." * 

243. Executive Power not Perfect. Like every other gov- 
ernmental agency ever created, the arrangements by which 
the executive power of our government is organized have 
their defects. It has been pointed out that the supremacy 
of the office, by far the highest in the gift of the nation, 
offers too great a stimulus to ambition; that it lures the 
statesman from the strict path of rectitude and induces him 
to seek popularity at whatever cost. Again, the frequent re- 
currence of the turmoil accompanying a presidential election 
is looked upon by many as undesirable, particularly as such 
agitation is often wholly unnecessary, the issues being not 
real ones, but issues manufactured by politicians in order to 
keep or to gain place. The discontinuity of policy resulting 
from our frequent change of presidents is also pointed to as 
a defect. Even when the new president is of the same party 
as his predecessor, there is likely to be considerable change; 
and if of the opposite party, there ensue radical changes re- 
sulting too frequently in the replacing of tried and experi- 
enced men by men new to the work. It is also noted that 
at the close of each administration there is likely to occur a 
period of inactivity. The outgoing president hesitates to 
embark on any new line of policy, since it may be com- 
pletely changed by his successor. 

244. The Vice-President. In the constitution as it was 
originally adopted the qualifications of the vice-president 
were not explicitly stated, though the natural implication 
was that they must be the same as those of the president. 
By the Xllth amendment, however, it was explicitly stated 

1 Bryce, Vol. I, p. 84. 



EXECUTIVE DEPARTMENT 199 

that "no person constitutionally ineligible to the office of 
president shall be eligible to that of vice-president of the 
United States." The time of electing the vice-president and 
the length of his term are the same as in the case of the presi- 
dent. His only duties are to preside over the meetings of 
the senate and to succeed the president. In the senate he 
is a mere moderator. He has no power of appointing com- 
mittees and no vote except a casting vote. The office has 
been generally regarded as of little importance, of so little 
importance indeed, that capable men have avoided, if pos- 
sible, a nomination to it. The result is that as a rule ob- 
scure and inferior men have been elected to the office. The 
danger is not inconsiderable that such men may be called 
upon to fill the presidential chair and discharge the duties 
of an office for which they were never intended. Five 
presidents have died in office. It has been suggested that 
this defect in our system be remedied by giving the vice- 
president more power, either by giving him a seat in the 
cabinet, or by giving him a vote in the senate, or by both 
these devices. 1 

Library References. — Ashley, §§ 269, 326-351, 394-400; Macy, Chap. 
XXIII, pp. 139-140; Macy, First Lessons, Chap. XVIII; Dawes, Chaps. 
VI-VII; Fiske, pp. 230, 232-244; Bryce, Vol. I, Chaps. V-VIII, XX-XXI; 
Hinsdale, Chaps. XXVIII-XXXII; Wilson, §§ 1097-1 108; Curtis, Vol. I, 
Chap. XXIX; Harrison, Chaps. IV-X; Federalist; Madison's Debates of 
the Federal Convention; Wilson, Congressional Government, pp. 43-52, 242— 
256; Dole, Chaps. XIV, XVIII; Alton, Chaps. X, XII, XVII; Lalor, Article 
on Executive; Woodburn, Chap. III. 

1 See Theodore Roosevelt, "American Ideals," pp. 187-188. 



200 CIVIL GOVERNMENT 



QUESTIONS ON THE TEXT 

171. Describe the executive department of the United States 
government. 

172. State the requirements for eligibility to the office of presi- 
dent. Give a full reason for such requirements. 

173. State the particulars in which the constitutional qualifi- 
cations of the president and a member of the house of representa- 
tives differ. Account for this difference. 

174. What office in the United States is restricted to natural- 
born citizens ? Why this restriction ? 

175. Give the length of term and salary of the president. Give 
reasons for a six-year term with no reelection. 

176. Give in substance the provision of the constitution in 
reference to the compensation of the president. 

177. Describe the three methods by which the convention pro- 
posed to elect the president. Describe the method adopted, and 
state why its original purpose has not been accomplished. 

178. Explain why the manner provided in the constitution for 
choosing the president by electors was preferred to other methods 
that were proposed. 

179. How is the vice-president chosen? Over what body does 
he preside ? 

180. What is meant by the electoral college ? What determines 
the number of electors to which a state is entitled ? To how many 
electors is this state entitled? 

181. State how a member of the electoral college is chosen, and 
mention his chief duty. 

182. Give arguments for or against choosing the president by 
direct popular vote. 

183. Give arguments sustaining the present mode of electing 
the president and vice-president. 

184. Describe the manner of choosing a president in case the 
electoral college fails to elect. State the limitations under which 
this is done. 

185. Describe the manner of choosing the vice-president in case 
no person has a majority of all ballots cast by the electoral college. 

186. In case of death of both president and vice-president, who 
then becomes president? State the substance of the present law 
of the presidential succession. 



EXECUTIVE DEPARTMENT 201 

187. Mention four powers of the president. 

188. Mention three leading powers of the president, and give 
two powers possessed by the president subject to approval by the 
senate. 

189. Mention with reference to the president (1) two executive 
powers, (2) one legislative power, (3) one judicial power. 

190. What judicial power has the president? 

191. What is meant by reprieve, pardon, commutation? Ex- 
plain why the chief executive is given power in these matters. 

192. How does the constitution make the president responsible 
for legislation ? 

193. What is the president's message? Briefly describe it. 

194. Give in substance the provision of the constitution regard- 
ing the power of the president to convene and to adjourn congress. 

195. What is the veto power? Explain the importance of the 
veto power in a republic. 

196. "The issue is now with congress. Prepared to execute 
every obligation imposed upon me by the constitution and the 
law, I await your action." Comment on the powers and duties of 
the president and of congress, referred to in this extract from 
President McKinley's message on the Cuban question (1898). 

197. What are treaties, and by whom may they be made for the 
United States? 

198. Describe the process of making and ratifying a treaty. 

199. In whom is vested the power to appoint ambassadors? 

200. Give the constitutional qualifications of the vice-president. 



CHAPTER XII 

EXECUTIVE DEPARTMENT: PRESIDENT'S ASSISTANTS 

245. The Cabinet was not, like the presidency, created by 
the constitution. When the organization of the executive 
power was under discussion, it was proposed that an execu- 
tive council be created to act as a check upon the president; 
and there was also some discussion as to the wisdom of 
forming an advisory body to assist him, without giving it 
any power to control his action. Neither of these plans, 
however, received the sanction of the convention, and the 
constitution makes no provision for a body possessing the 
character and functions of the president's cabinet. The 
only approach to such a provision is found in the clause 
giving the president the right to "require the opinion in 
writing of the principal officer in each of the executive de- 
partments upon any subject relating to the duties of their 
respective offices." There were, then, to be executive de- 
partments whose chief officers were to advise and otherwise 
assist the president; but it was evidently contemplated by 
the convention that such assistance would be required from 
each separately, not that they would be formed into a coun- 
cil for the purpose of consulting and advising upon matters 
of general administrative policy. The executive depart- 
ments have been created by acts of congress; but the cabi- 
net with its peculiar functions, though made up of the heads 
of these departments, is the creation neither of constitutional 
nor of statute law. Its relations to the president and to 

202 



EXECUTIVE DEPARTMENT 203 

congress have been determined by custom only. It has no 
legal position as an advisory body, and the president is in 
no way legally bound by its advice, though its opinion may 
and usually does have influence with him. No official record 
is kept of cabinet meetings. 

246. Relations of Cabinet Officers to President. The head 
of an executive department is more than a mere adminis- 
trator of the business of his department. The actual per- 
formance of such duties can be intrusted to the assistant 
secretaries, the heads of bureaus, and minor officials; but 
the secretary must understand his department as a whole, 
must know its needs, must see that it is administered in con- 
formity with the policy of the administration. His function 
as member of the cabinet is even more important than his 
function as head of the department. He is first of all the 
president's adviser not only in regard to the business of his 
own department but in matters of general policy as well. 
Under our present system of party government, therefore, it 
is important that there should be harmony in the cabinet, if 
a policy is to be chosen and consistently pursued. The sec- 
retary ought to be not only of the president's political party 
but also in close personal sympathy with him. It is now 
thoroughly understood that, if a cabinet member finds him- 
self out of harmony with the president's policy, it is his duty 
to resign or the president's privilege to remove him. It is 
for this reason that the president is given so free a hand in 
the choice of his cabinet, and partly for this reason also that 
he usually forms an entirely new cabinet upon his accession 
to office, even though he may be of the same political 
party as his predecessor. All cabinet members are appointed 
by the president, nominally with the consent of the senate 



204 CIVIL GOVERNMENT 

(though the senate practically never refuses its consent), 
and all receive the same compensation, $8,000 per annum. 
The president alone has the power to remove them. 

247. Executive Departments : Organization. The executive 
departments are very thoroughly organized. They are di- 
vided first into bureaus, each with a commissioner at its head, 
who is directly responsible to the secretary. The bureaus are 
again divided into divisions, each with its chief of division 
responsible to the commissioner; while subordinate to these 
chiefs of division and responsible to them is the great army 
of clerks employed in the administrative work of the govern- 
ment. 

248. Executive Departments : History. Those depart- 
ments whose heads form the president's cabinet, have been 
created from time to time by acts of congress, as the need for 
them became apparent. When the government was organiz- 
ing under the constitution in 1789, congress created three de- 
partments — the department of state, the department of the 
treasury, and the department of war ; and the heads of these 
departments (called secretaries) together with the attorney- 
general, whose office was created the same year, formed Wash- 
ington's cabinet. The department over which the attorney- 
general has control, the department of justice, was not created 
until 1870. In 1798 there was added the navy department, 
naval affairs having been up to this time attended to by the war 
department; and in 1829 the postmaster- general, whose office 
had existed since colonial times and whose department had 
been conducted since its creation in 1794 as a part of the 
treasury department, was made a cabinet member. The 
department of the interior was added in 1849. A depart- 
ment of agriculture was organized in 1862, but its head was 



EXECUTIVE DEPARTMENT 205 

not made a cabinet officer until 1889. Finally, in 1903 the 
department of commerce and labor was established. It 
will be seen, then, that the creation of a new executive de- 
partment and the calling of its chief officer into the presi- 
dent's cabinet are not always coincident. The departments 
have been created in the following order: state, treasury, 
war (1789); post-office (1794); navy (1798); interior (1849); 
agriculture (1862); justice (1870); commerce and labor 
(1903). Their chief officers have become members of the 
president's cabinet in the following order: secretary of state, 
secretary of the treasury, secretary of war, attorney- general 
(1789); secretary of the navy (1798); postmaster-general 
(1829); secretary of the interior (1849); secretary of agricul- 
ture (1889); secretary of commerce and labor (1903). 

249. State Department. The chief cabinet officer is the 
secretary of state, commonly called the head of the cabinet. 
At cabinet meetings he occupies the seat of dignity at the 
right of the president. His chief duty is the conduct of 
foreign affairs ; and since the president, because of the press- 
ure of other business, is compelled to give him a very free 
hand, he practically controls the foreign policy of the nation, 
subject only to the restraints imposed by the senate. Thus 
he is brought much more prominently into public notice 
than are the other cabinet officers. It is his business, ex- 
cept in cases where special officers have been appointed for 
the purpose, to conduct all negotiations with foreign coun- 
tries. He receives the representatives of foreign powers and 
presents them to the president, conducts all official corre- 
spondence with them, carries on all necessary correspondence 
with United States ministers and consuls to foreign coun- 
tries, and issues passports to citizens of the United States 



206 CIVIL GOVERNMENT 

who wish to travel abroad. So far his duties are concerned 
with foreign affairs, but he has also some domestic duties 
to perform. It is through him that the president communi- 
cates with the executives of the states, and to him is given 
the custody and publication of the laws and treaties of the 
United States, and the custody of the great seal (the official 
seal of the United States). He is given three assistant sec- 
retaries, and his department is divided into seven bureaus: 
the diplomatic bureau; the consular bureau; the bureaus 
of indexes and archives; of accounts; of rolls and library; of 
appointments; and of passports. 

250. Treasury Department: Financial Duties. The sec- 
ond of the great executive departments is that of the treas- 
ury. It concerns itself principally, as its name implies, 
with the finances of the nation, but not exclusively, for it 
performs also a great variety of miscellaneous duties. The 
principal financial duties of the secretary of the treasury are 
to estimate the probable revenues and the probable expen- 
ditures of the government, and to prepare plans for the cre- 
ation and improvement of the public revenue. These esti- 
mates and plans he submits to congress in his annual report, 
in order to furnish that body with some sort of guide in the 
making of appropriations and the imposition of taxes. It 
is his duty also to superintend the collection of revenue, to 
issue warrants for the payment of all money from the United 
States treasury, and to superintend the coinage and printing 
of money. 

251. Internal Revenue Bureau. We have already seen 
that the sources of the national revenue are customs or im- 
port duties, and excises or internal taxes of various kinds. 
Until the outbreak of the civil war, the United States had no 



EXECUTIVE DEPARTMENT 207 

permanent system of internal taxation. Then in 1862 an 
internal revenue bureau was organized under the treasury 
department and a commissioner of internal revenue ap- 
pointed. 

252. The Treasurer. All money belonging to the United 
States is in charge of the treasurer of the United States. It 
is his duty to receive all revenue and to pay it out on the 
warrants issued by the secretary of the treasury or by a des- 
ignated assistant, to redeem the notes of the national banks, 
and to manage the independent treasury system. This sys- 
tem was established by congress at the suggestion of Presi- 
dent Van Buren in 1840 for the purpose of making the 
United States the custodian of its own money instead of de- 
positing it with private corporations; but the law establish- 
ing it was repealed the next year, and not reenacted until 
1846, during President Polk's administration. Besides the 
main treasury at Washington, subtreasuries have been estab- 
lished at Boston, New York, Philadelphia, Baltimore, Cin- 
cinnati, Chicago, St. Louis, New Orleans, and San Francisco. 

253. War Department : Military Duties. The war depart- 
ment, as its name implies, has control of the military affairs 
of the nation; but it acts also as a department of public 
works, and has contributed not a little toward the advance- 
ment of science by conducting the exploring expeditions sent 
out from time to time by the government. With the ex- 
ception of the secretary of war and the assistant secretary 
the principal officers are officers of the United States army. 
Of those whose duties are strictly or mainly military the 
most important are the adjutant-general, whose duty it is 
to issue orders for the muster and the movement of troops, 
to conduct the correspondence of the department and to 



208 CIVIL GOVERNMENT 

keep the records; the inspector-general, who inspects all 
military posts, all public works carried on by army ofhcers, 
all military prisons, and the military academy, and reports 
as to equipment, discipline, sanitary condition, finances, etc. ; 
the quartermaster-general, who has charge of the clothing 
and general army supplies; the commissary-general, who 
attends to the food supply; the surgeon-general, who super- 
intends the medical service; the chief of ordnance, who at- 
tends to the supply of arms; the judge-advocate-general, 
who reviews and records the proceedings of all courts-martial 
and courts of inquiry, and acts as legal adviser to the de- 
partment; and the chief signal officer, who superintends all 
military signalling by means of flags, heliograph, or other 
devices, and who has charge of the construction and opera- 
tion of military telegraph lines. 

254. Public Works. It is through the chief of engineers and 
his corps that the war department performs in large measure 
the functions of a department of public works. Under their 
direction fortifications are located and constructed, bridges 
and docks are built, and great sums of money are expended 
annually in improving rivers and harbors. 

255. Department of Justice. Though the department of 
justice was not created until 1870, the office of attorney-gen- 
eral, as the chief officer of the department is called, has ex- 
isted since 1789. He is the legal adviser of the president and 
of the heads of departments, has the general supervision of 
the work of the United States district attorneys and marshals, 
conducts all suits to which the United States is a party, is in 
general "public prosecutor and standing counsel" for the 
United States. The law officers of the various departments 
are under his direction and control. The work of the de- 



EXECUTIVE DEPARTMENT 209 

partment is very large and the office of attorney-general one 
of the most important and responsible under the govern- 
ment. 

256. Post-office Department. We have before seen some- 
thing of the great volume of business conducted by the post- 
office department (§ 172). The postmaster- general, who is 
the head of the department, became a member of the cabi- 
net during President Jackson's administration in 1829. The 
work of the department is divided among four bureaus, each 
under the direction of an assistant postmaster-general. These 
assistants have the general management of the post-offices 
with their clerks and carriers, and of the transportation of the 
mails; the providing of stamps and the management of the 
finances; the appointment of those postmasters whose ap- 
pointment is intrusted to the department; and the direction 
of the inspectors of the department. The department pro- 
vides for the free delivery and collection of mail, for a money 
order and registry system, for a railway mail service, and 
for the establishment of star routes (routes over which mail 
is transported by some means other than railroad or steam- 
boat). The postmaster-general has the power of appointing 
all the officers of the department except the assistant post- 
masters-general and the postmasters whose salaries are 
$1 ,000 or more. He may also, with the consent of the presi- 
dent, let contracts for the transportation of mail and make 
postal treaties with foreign countries. 

257. Navy Department. Until the establishment of the 
department of the navy in 1798, naval matters were looked 
after by the war department. The navy department has gen- 
eral superintendence of the construction, manning, equip- 
ment, and employment of war vessels. These duties it per- 



210 CIVIL GOVERNMENT 

forms by means of seven bureaus, whose heads are naval 
officers. These are the bureaus of yards and docks, equip- 
ment and recruiting, ordnance, construction and repair, steam 
engineering, supplies and accounts, and medicine and surgery. 
Their duties are indicated by their names. The supervision of 
the naval academy at Annapolis and of the naval observatory 
at Washington is also a part of the work of the department. 

258. Department of the Interior. This department, which 
is under the direction of the secretary of the interior, per- 
forms, like the treasury department, a great variety of im- 
portant functions. There are two assistant secretaries in the 
department besides six commissioners and two directors. 
The titles of these commissioners and directors give some 
idea of the scope and character of the work of the depart- 
ment. They are the commissioner of the general land office, 
the commissioner of education, the commissioner of pensions, 
the commissioner of Indian affairs, the commissioner of rail- 
roads, the commissioner of patents, and the director of the 
geological survey. 

259. The Land Office. The most important bureau of the 
department is the general land office, which has charge of 
all the public lands of the United States, and whose duty it 
is to direct the survey and sales of this property and to issue 
titles to it. At different periods during its history the United 
States has in various ways come into possession of vast 
tracts of territory. The first of these public lands, it will be 
remembered, was known as the northwest territory, whose 
cession to the United States by the states claiming it was 
completed in 1786. Later North Carolina, South Carolina 
and Georgia ceded their claims to western lands, and 
since then the government has obtained enormous tracts 



EXECUTIVE DEPARTMENT 211 

by purchase, and by conquest, or by both, and by annexa- 
tion. Among these additions may be mentioned the Lou- 
isiana purchase from France (1803), the purchase of Florida 
from Spain (182 1), the purchase of Alaska from Russia 
(1867), and the acquisition of extensive territory from 
Mexico (1848), as the result of the war with Mexico. 

260. System oj Surveys. Under the direction of the land 
office large portions of this vast domain have been disposed 
of in various ways. Before any disposal could be made of 
them, however, it was necessary that they should be sur- 
veyed. Accordingly, a system of surveys, known as the rect- 
angular system, was very early adopted. A base and a 
meridian line crossing each other at right angles were first 
laid off, and from these the land was divided into rectangular 
townships, each six miles square. Each township was di- 
vided into sections of 640 acres each, and each section into 
quarter sections. Each section was numbered, and section 
16, and later sections 16 and 36, were set apart for the sup- 
port of the common schools. 

261. Land Grants. Besides these grants in aid of educa- 
tion, other large grants of public lands have been made to 
the states for educational purposes. The states have also 
received from the general government large grants of swamp 
and saline lands and large grants of other land for purposes 
of internal improvement. Between 1828 and 1846 the gen- 
eral government granted to the states for the improvement 
of rivers and the building of canals, wagon-roads, railroads, 
etc., a total of 162,230,099 acres. Besides these state grants 
the United States has also given land bounties to honorably 
discharged soldiers and sailors in return for military and 
naval service, the grant partaking somewhat of the character 



212 CIVIL GOVERNMENT 

of a pension; and has granted large tracts to railroad com- 
panies, in order to promote the construction of railroads and 
thus develop the country. Many millions of acres have also 
been given to settlers upon compliance with certain laws re- 
quiring them to settle upon and improve the land. Thus 
great numbers of settlers from the eastern states and from 
Europe have found homes in the west. 

262. Bureau o) Education. The commissioner of education 
through his bureau collects statistics as to the condition and 
progress of education in the various states and in foreign 
countries, for the purpose of aiding in the establishment and 
maintenance of efficient school systems. Except in Alaska, 
the commissioner has only advisory power in the actual 
operation of the school systems. There he directs their 
management. 

263. Pension Bureau. The pension bureau examines and 
adjusts all claims for pensions or bounty lands given in re- 
turn for military or naval service rendered in time of war. 
According to the report of the commissioner of pensions for 
1900 there were paid out in pensions for that year approxi- 
mately $140,000,000. The "question as to the advisability of 
granting pensions so liberally as has been done by our gov- 
ernment has been much discussed. Mr. Harrison says of 
it: " There are two views of the pension question — one 
from the 'Little Round Top' at Gettysburg, looking out 
over a field sown thickly with the dead, and around upon 
bloody, blackened, and maimed men cheering the shot-torn 
banner of their country; the other from an office desk on a 
busy street, or from an endowed chair in a university, looking 
upon a statistical table." 1 

1 Harrison, p. 285. 



EXECUTIVE DEPARTMENT 213 

264. Bureau of Indian Affairs. One very interesting 
branch of the work of the interior department is that con- 
ducted by the bureau of Indian affairs. Up to 187 1 the 
Indian tribes were treated by the government as independent 
nations; but a law passed that year made them the " wards 
of the nation." Their interests are now protected under 
the bureau of Indian affairs by a board of Indian commis- 
sioners, whose duty it is to oversee the expenditure of money 
and inspect the goods purchased for them; by a number of 
inspectors, who visit the agencies to examine into their con- 
dition; and by agents, who with the aid of teachers, me- 
chanics, and farmers, try to promote civilization among them. 
The Indian schools at Hampton and Carlisle are also under 
the supervision of the bureau. 

265. Commissioner of Railroads. It is the business of the 
commissioner of railroads to receive the reports and to ex- 
amine the books and accounts of the railroads that have 
been aided through land grants or otherwise by the govern- 
ment, and to see that the laws relating to the management of 
those roads are enforced. 

266. Patent Bureau and Geological Survey. The work of 
the patent bureau and the process by which patents are 
secured have been considered elsewhere (§ 173). In addi- 
tion to the work of the bureaus outlined above, the depart- 
ment of the interior conducts also the work of the geological 
survey under the immediate control of an officer called a 
director. The work of the geological survey is to examine 
the geological structure and to determine the mineral re- 
sources and mineral products of the United States. The 
survey of the forest reserves is also conducted by this 
bureau. 



214 CIVIL GOVERNMENT 

267. Department of Agriculture. It is the business of 
the department in general to acquire and diffuse among 
the people useful information on subjects connected with 
agriculture. The names of some of the bureaus and di- 
visions convey some idea of the scope of the work. 
There are the bureaus of animal industry, of plant in- 
dustry, of forestry, and of chemistry of soils; the divisions 
of vegetable physiology and pathology, of entomology, of 
biological survey, of seeds, of botany, and of gardens and 
grounds; the office of public road inquiries; and the 
weather bureau. One of the most important services ren- 
dered by the department is that performed through the 
bureau of animal industry, which inspects meat intended for 
export, inspects live animals, both those intended for ex- 
port and those imported, inspects diseased cattle, and pre- 
vents the spread of disease among cattle. The bureau of 
plant industry studies plant life with a view to assisting the 
farmer. It attempts to discover methods of improving crops, 
introduces new varieties of fruits and vegetables, and studies 
methods of controlling the spread of weeds and noxious 
plants. Another important branch of the work of the de- 
partment of agriculture is that conducted by the weather 
bureau. Through its agency, daily forecasts and warnings of 
storms are sent all over the country, and storm signals are 
displayed at many points along the coasts. The depart- 
ment also supervises numerous experiment stations through- 
out the country, furnishing them advice and assistance in 
carrying on experiments, and suggesting lines of investi- 
gation. In Alaska, Hawaii, and Porto Rico it has estab- 
lished experiment stations under its own immediate di- 
rection. 



EXECUTIVE DEPARTMENT 215 

268. The Department of Commerce and Labor was estab- 
lished by congress in 1903, and the head of the depart- 
ment was made a cabinet officer. Much of the work hereto- 
fore done by other departments and independent boards 
is now included in the department of commerce and labor. 
This department includes the lighthouse board, the light- 
house establishment, the steamboat inspection service, the 
bureau of navigation, the work of the United States ship- 
ping commissioners, the national bureau of standards, the 
coast and geodetic survey, the work of the commissioner- 
general of immigration, the immigration service at large, 
the bureau of statistics, the census office and all that per- 
tains to it, the department of labor, the fish commission, and 
the office of commissioner of fish and fisheries. The bureaus 
of industrial promotion and of corporations have been created 
and form a part of the new department. It also has juris- 
diction over the Alaskan fisheries and over Chinese exclu- 
sion. 

269. General Work of Department. The bureau of immi- 
gration prepares and revises all regulations pertaining to 
immigration, decides cases as to the right of aliens to enter 
the country, investigates supposed violations of the alien- 
contract-labor laws, and supervises the work done by the 
inspectors of immigrants. The bureau of statistics collects 
and publishes annually statistics on foreign commerce. This 
work is extremely valuable to members of congress in the 
framing of tariff laws and in the preparation of special 
legislation for particular industries, and is also used as the 
basis of all our commercial treaties. The department of 
commerce and labor provides for the coast and geodetic 
survey, by which a survey of the whole coast and all har- 



216 CIVIL GOVERNMENT 

bors is made for the purpose of locating shoals, rocks, etc., 
as well as an accurate survey of land lines across the con- 
tinent; for the location of suitable buoys and lighthouses 
to mark the dangers to navigation thus ascertained; and 
for the maintenance of life-saving service for the rescue of 
those who may be imperilled by disasters on water. This 
service not only covers the long line of our sea coast, but 
also our larger inland waters as well. 

270. The Bureau of Corporations has power to investigate 
the organization, conduct, and management of the busi- 
ness of any corporation, joint stock company or corporate 
combination engaged in commerce among the several states 
and with foreign nations, excepting common carriers, and 
to gather such information and data as will enable the presi- 
dent of the United States, to make recommendations to con- 
gress for legislation for the regulation of such commerce, 
and to report such data to the president from time to time 
as he shall require; and the information so obtained, or as 
much thereof as the president may direct, shall be made 
public. 

271. Independent Boards and Commissions. In addition 
to the regular executive departments there have been created 
at different times commissions and boards, executive in char- 
acter, though not connected with any of the departments. 
Among these are the civil service commission and the in- 
terstate commerce commission. Special officers or boards 
exist also for the purpose of conducting the work of the 
government printing office, of the library of congress, of 
the Smithsonian institution, of the national museum, and 
of the bureau of ethnology. The work of the interstate 
commerce commission has been already described (§156). 



EXECUTIVE DEPARTMENT 217 

The civil service commission consists of three commission- 
ers, only two of whom may be of the same political party, 
appointed by the president with the advice and consent of 
the senate. There are also a chief examiner and a secre- 
tary. It is the duty of the commission to provide for com- 
petitive examinations to test the fitness of candidates for 
the civil service, and to regulate and improve that service. 

Library References. — Ashley, Chap. XV; Macy, Chaps. XXIV-XXV, 
XXVII-XXXI; Ma.cy, First Lessons, Chap. XIX; Dawes, Chaps. VIII-IX 
Bryce, Vol. I, Chap. IX; Fiske, pp. 244-250; Harrison, Chaps. XI-XIX 
Wilson, §§ 1109-1120; Hinsdale, Chap. XXXIII; Curtis, Vol. I, pp. 574-576 
Congressional Directory; Wilson, Congressional Government, pp. 257-275, 
277-293; Dole, Chap. XIV; Lalor, Article on State Department, Treasury 
Department, etc.; Woodburn, pp. 189-193. 

QUESTIONS ON THE TEXT 

201. Was the cabinet contemplated by the constitutional con- 
vention, or provided for in the constitution ? Discuss fully. 

202. Name with their titles the persons composing the president's 
cabinet. How are the members of the cabinet chosen ? 

203. Should the cabinet officers have seats in congress? Why? 

204. Mention in order of rank the officers composing the presi- 
dent's cabinet; in order of their creation by law. 

205. Give the name and the three chief duties of the incumbent 
of the most important position in the president's cabinet. 

206. What are the principal duties of the secretary of state? 
How is this office rilled? Give five duties of the secretary of com- 
merce and labor. 

207. Give salary of secretary of state ; of the other cabinet officers. 

208. Through what department does the United States conduct 
its business with other nations? 

209. How is the secretary of the treasury chosen ? What is the 
length of his term of office, and what is his salary? What are the 
chief duties of secretary of the treasury? 

210. Describe the duties of adjutant-general; inspector-general; 
quartermaster-general. To what department of government do 
they belong? 



218 CIVIL GOVERNMENT 

211. Describe the mode of appointment and state the principal 
duties of the attorney-general of the United States. 

212. How many classes of mail are there? What are the postal 
rates for each ? In which class do letters belong ? newspapers ? 

213. What is the basis of the classification of post-offices? By 
whom are postmasters appointed? 

214. What are the principal duties of the department of the 
interior? Mention the two ways of looking at the pension question 
as given by ex-President Harrison. 

215. What is meant by preemption of public lands? By a 
homestead claim? By a timber claim? 

216. What direct aid has the United States government given 
to education in the different states? 

217. Mention two duties of the commissioner of education. 

218. What officer is at the head of the department of agricul- 
ture? Is he a cabinet officer? 

219. What officer was last added to the president's cabinet? 
What is the nature of his duties? 

220. What department of the cabinet has charge of taking the 
national census? How often and in what years is the census of 
the United States taken ? Of the state ? 

221. Describe two of the executive departments of the govern- 
ment, giving the principal duties of each department. 

222. What are the duties of the civil service commission? 
What is the " civil service"? What is the "spoils system"? 

223. What is the chief provision of the system of civil service? 
Give an argument in favor of this system. 

224. State which executive department of the government would 
consider each of the following: (i) transportation of mail; (2) deal- 
ings with the Indians; (3) collection of duties on imports; (4) nego- 
tiation of treaties; (5) violation of interstate commerce laws; (6) cus- 
tom houses; (7) patents; (8) diplomatic correspondence; (9) army 
supplies; (10) education; (11) passports; (12) collection of revenue; 
(13) arsenals and armories; (14) pensions; (15) coast survey; (16) 
census; (17) foreign relations; (18) erection of lighthouses; (19) 
copyrights. 



CHAPTER XIII 

JUDICIAL DEPARTMENT: FEDERAL COURTS 

272. Necessity of Federal Judiciary. "Laws are a dead 
letter without courts to expound and define their true mean- 
ing and operation." Under the confederation there ex- 
isted no separate federal judiciary, and the judicial powers 
vested in congress were extremely limited (§§ 84, 85). It had 
become clear that somewhere in the nation there must 
exist an authority empowered to interpret the laws and 
treaties of the United States and to determine whether or 
not acts passed by congress harmonized with the funda- 
mental law of the land as embodied in the constitution — 
in other words, to pass upon their constitutionality. It had 
become equally clear that such interpretation could not safely 
be entrusted to the state courts. In the first place, such 
an arrangement would be sure to result in a complete lack 
of uniformity. The same point might and probably would 
be decided in ways as various as the courts before which it 
was brought. In the second place, the state courts were un- 
fitted for the work, both because of the nature of many of the 
matters in dispute, and because of the character of the parties 
to federal suits. Matters of a quasi-international character, 
such as admiralty jurisdiction, are obviously not matters 
to be properly adjudicated by the courts of any particular 
state; nor could state courts be completely trusted, because 
of local prejudices, to do full justice between citizens of 
their own states and citizens of another, or between their 

219 



220 CIVIL GOVERNMENT 

own states and the federal government. Moreover, state 
courts, being authorities coordinate with and independent 
of one another, supplied no means for settling disputes 
between states. And finally, since the constitution and the 
federal laws made under it were to be applicable not to 
the states only but to the individual citizen as well, it was 
more than ever necessary that a federal judiciary be created 
to interpret and apply these laws. 

273. The Federal Courts. Only one of the federal courts, 
namely, the supreme court, was directly created by the 
constitution. It was left to congress to provide such infe- 
rior courts as might be necessary; and accordingly, by the 
judiciary act of 1789, not only was the supreme court or- 
ganized, but circuit courts and district courts were created 
and their functions were defined. Later it was found neces- 
sary to establish also a court of claims and a circuit court of 
appeals; so that the federal judiciary at present consists of 
the supreme court, the court of claims, the circuit courts 
of appeals, the circuit courts, and the district courts, besides 
a number of other courts under the control of congress but 
differing somewhat from the regular federal courts. 

274. The Judges. If the judicial department of the gov- 
ernment was to be made separate from and coordinate 
with the other two departments, it was necessary that the 
judges should be made as independent of them as possible. 
Moreover, the makers of the constitution were particularly 
anxious to secure the independence of the judiciary, regard- 
ing this as the surest means of safeguarding the liberties 
of the people from the encroachments of the legislature and 
the executive. Accordingly, the constitution provides that 
"The judges, both of the supreme and inferior courts, shall 



JUDICIAL DEPARTMENT 221 

hold their offices during good behavior, and shall, at stated 
times, receive for their services a compensation which shall 
not be diminished during their continuance in office," i.e., 
their tenure of office is a life tenure subject to removal 
only by impeachment, and that is a process rarely resorted 
to. Four times only since the adoption of the constitution 
has it been employed against federal judges, and only once 
against a judge of the supreme court. It is further pro- 
vided by the constitution that judges of the supreme court 
shall be appointed by the president with the advice and 
consent of the senate; and though no distinct provision is 
made for the appointment of the inferior federal judges, 
the president appoints them under the provision of the con- 
stitution which says that the president shall appoint all 
officers not otherwise provided for by the constitution or by 
congress. 

275. Jurisdiction: One Class of Cases. The constitution 
also defines very clearly the classes of cases over which 
the federal courts may exercise jurisdiction. Over some of 
these cases jurisdiction has been given to the federal courts 
because of the nature of the questions involved ; over others, 
because of the nature of the parties to the suit. To the 
first class belong (1) all cases arising under the constitu- 
tion, laws, or treaties of the United States; (2) all cases of 
admiralty or maritime jurisdiction; and (3) controversies 
between citizens of the same state claiming lands under 
grants of different states. Over cases arising under the 
constitution, laws, or treaties of the United States the juris- 
diction of the federal courts is not exclusive, i.e., such cases 
may be begun in the state courts; but in case the decision 
of the state courts is adverse to federal authority, these 



222 CIVIL GOVERNMENT 

cases can be finally adjudicated only by the federal courts. 
The reason for the rule is clear. The federal authority 
must be the final judge of the extent of federal powers. 
To give the state courts power to render final judgment 
in such cases would be to make them, and not the United 
States, the ultimate authority. Over cases belonging to 
classes (2) and (3) above, the federal courts exercise exclu- 
sive jurisdiction. Maritime and admiralty cases, since they 
affect either commerce or international relations, both of 
which are regulated by the United States and not by the 
states, and since decisions in such cases should be uniform, 
can be properly dealt with only by the United States courts. 
276. Another Class of Cases. The cases in which juris- 
diction is given to the federal courts because of the nature 
of the parties to the suit are the following: 

(1) Cases affecting ambassadors, other public ministers, 
and consuls ; 

(2) Controversies to which the United States is a party; 

(3) Controversies between two or more states; 

(4) Controversies between a state and citizens of another 
state ; 

(5) Controversies between citizens of different states; 

(6) Controversies between a state or its citizens and for- 
eign states, citizens, or subjects. 

In all these cases the jurisdiction of the federal courts is 
exclusive. As regards the first of these classes it may be 
said that since ambassadors, ministers, and consuls are per- 
sons having an international character, it would hardly be 
fitting that cases affecting them should be dealt with by 
state courts. Similarly, it is not in keeping with the sov- 
ereign character of the United States that it should be com- 



JUDICIAL DEPARTMENT 223 

pelled to sue or to be sued in a state court. In all the rest 
of these cases it was felt that a state court would be likely to 
be prejudiced. 

277. Xlth Amendment. Two of these classes of con- 
troversies, (4) and (6), have been so far withdrawn from 
federal jurisdiction by the passing of the Xlth amend- 
ment, as to prevent a citizen or citizens of another state or 
foreign state from suing a state in the federal courts. These 
provisions were doubtless never intended to give to a private 
individual the right to sue a state, but rather to give to the 
state an opportunity to appear as plaintiff in a federal court 
against citizens of other states. The clause was, however, 
soon interpreted, in the case of Chisholm vs. Georgia, by a 
decision of the supreme court in 1793, as applying to cases 
in which a state is defendant also. The decision was re- 
ceived with disfavor and alarm by the states. It was thought 
that it violated the sense of dignity of a state to be dragged 
into court as defendant at the instance of a private individ- 
ual. Accordingly, the Xlth amendment was proposed by 
congress and duly ratified by the states. It provides that 
"The judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity commenced or 
prosecuted against one of the United States by citizens of 
another state or by citizens or subjects of any foreign state." 
Under this amendment some of the states have found it pos- 
sible to repudiate their debts with impunity. 

278. Transfer of Cases. Any case that has been begun in 
a state court may be transferred to a federal court, provided 
the defendant can rest his case on a federal law. The judi- 
ciary act of 1789 lays down the rules for thus removing a 
case from one court to the other. It may be done (1) if the 



224 CIVIL GOVERNMENT 

state court, in judging the case, has decided against the 
validity of a treaty or a law of the United States or some 
authority exercised under the United States; or (2) if the 
state court has decided in favor of the validity of a state law 
or exercise of authority as against the constitution, laws, or 
treaties of the United States; or (3) if the state court has 
decided against a privilege, right, title, or immunity claimed 
under the United States constitution, laws, or treaties. The 
reason for the rule is sufficiently clear. No state construc- 
tion of a federal law can be admitted to be final, if that con- 
struction in any way abridges federal authority. 

279. Treason. Besides giving to congress power to estab- 
lish federal courts inferior to the supreme court, the consti- 
tution gives into its hands also the power to declare the pun- 
ishment for treason. It defines treason as follows: "Treason 
against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them 
aid and comfort." While granting this power, however, the 
constitution takes care to safeguard the interests of the in- 
dividual by imposing some limitations. It is provided that 
"No person shall be convicted of treason, unless on the 
testimony of two witnesses to the same overt act, or on con- 
fession in open court;" and further, that "no attainder of 
treason shall work corruption of blood or forfeiture, except 
during the life of the person attainted." Corruption of blood 
was a punishment sometimes formerly inflicted as a penalty 
for treason or felony. By it the person attainted was dis- 
abled from inheriting any property, from retaining any 
which he might possess, and from transmitting any to his 
posterity. In accordance with the power granted it, con- 
gress intrusts the trial for treason to a tribunal appointed by 



JUDICIAL DEPARTMENT 225 

itself and has decreed death as a punishment, or, at the dis- 
cretion of the court, "imprisonment at hard labor for not 
less than five years, and a fine of not less than ten thousand 
dollars." 

280. The Supreme Court, as was noted above, was directly 
created by the constitution, and compensation was provided 
for the judges; but no limitations were imposed as to the 
number of judges to be appointed or the amount of salary 
to be paid to each. These details were left to be determined 
by congress. The number of judges fixed by the judiciary 
act of 1789 was six. This number has since been increased 
to nine, one chief justice and eight associate justices. The 
chief justice receives an annual salary of $10,500, while the 
associates receive $10,000 each. 

281. The Jurisdiction of the Supreme Court is also deter- 
mined by the constitution, i.e., the constitution declares in 
what classes of cases the supreme court has authority to 
administer justice. It has original jurisdiction (the right to 
entertain an action from the beginning) in all cases affecting 
ambassadors, other public ministers, and consuls; and in 
cases to which a state is a party. In other cases it has ap- 
pellate jurisdiction, i.e., cases may be brought before it 
from the inferior federal courts, or from state courts under 
certain conditions before described (§278). 

282. The Sessions of the Supreme Court are held annually 
in Washington, beginning on the second Monday in October. 
Excepting on Saturday and Sunday, sessions are held daily 
from twelve to four. The room, formerly occupied by the 
senate, is a semicircular hall with a low, domed ceiling. 
Around the room runs a screen of Ionic columns, forming a 
loggia and supporting a gallery. In front is the bench of the 



226 CIVIL GOVERNMENT 

court, the chair of the chief justice in the centre, those of the 
eight associates on the sides. The justices appear in black 
gowns. The presence of at least six judges is required in 
order that a decision may be pronounced — a rule that 
doubtless delays the work of the court to some extent, but 
secures a thorough consideration of every case. The court 
goes over each case twice. First the opinion of the major- 
ity is ascertained. This is then written out by one of the 
judges, and is reviewed and criticised by the court before it is 
adopted as the judgment of the court. 

283. The Circuit Courts were established by congress in 
accordance with the power granted it by the constitution to 
establish "inferior courts.' ' The United States is at present 
divided into nine judicial circuits, in each of which court is 
held annually. To each circuit is allotted one justice of the 
supreme court, and each has in addition at least two circuit 
judges, who receive an annual salary of $6,000 each. The 
justice of the supreme court is required by law to attend 
court in each district of his circuit at least once in two years. 
A circuit court may be held either by a circuit judge sitting 
alone, or by the supreme court justice assigned to that cir- 
cuit sitting alone, or by the district judge of the district in 
which the court is held, or by any two of them, or by all of 
them sitting together. 

284. Circuit Court of Appeals. In addition to the circuit 
courts, a circuit court of appeals for each circuit was estab- 
lished in 1 891. The judges of each circuit together with the 
supreme court justice of the circuit make up this court, and 
any two of them constitute a quorum. To this court cases 
may be brought on appeal from the district and circuit courts, 
and in some classes of cases a further appeal may be taken 



JUDICIAL DEPARTMENT 227 

to the supreme court. These courts were established in the 
hope of relieving the supreme court of some of its work, 
which had grown extremely heavy. 

285. The District Courts are the lowest class of "inferior 
courts" established by congress. The country is divided into 
eighty-five judicial districts, including eleven territorial dis- 
tricts, each with its district court. The judges receive a 
salary of $5,000 per annum. 

286. The Court of Claims, established in 1855, consists of 
a chief justice and four associate justices, each with a salary 
of $4,500. It holds an annual session in Washington for the 
purpose of dealing with the claims of private persons against 
the federal government. Cases may be appealed from it to 
the supreme court. 

287. Other Courts. In addition to these inferior federal 
courts, congress has under its control also the court of private 
land claims, consisting of one chief justice and four associate 
justices, each with a salary of $5,000 per annum; the supreme 
court of the District of Columbia; and the territorial courts, 
whose judges are commonly appointed for only four years. 

288. Marshals and District Attorneys. In order that the 
federal courts may execute the powers entrusted to them, 
there is appointed usually in each district an officer called 
the United States marshal, whose duty it is to execute the 
warrants or other orders of the district and circuit courts, 
and to perform duties corresponding in general to those of 
sheriff in the state governments. In case the marshal meets 
with resistance in the performance of his duty, he is entitled 
to call upon the citizens for assistance. If they cannot or 
will not help him, or if their help is insufficient, he may apply 
to the government at Washington for the assistance of United 



228 CIVIL GOVERNMENT 

States troops. Besides this federal sheriff, there is appointed 
usually in each district also a federal prosecutor called the 
United States district attorney. It is his duty to institute 
proceedings against all persons transgressing the federal laws. 
Both the United States marshals and the district attorneys 
are under the direction of the attorney-general as head of 
the department of justice. 

289. The Procedure of the Federal Courts is prescribed by 
congress, subject only to certain limitations imposed by the 
constitution for the purpose of safeguarding the rights of the 
individual, such as the provision securing the right of trial 
by jury in criminal cases. 

290. Defects of the Judicial System. The judicial depart- 
ment of our federal government has elicited more applause 
from critics, both at home and abroad, than has any other 
department. Yet it is not without its defects. It has been 
pointed out that in the inferior courts the salaries are in gen- 
eral inadequate, and that in the more populous places the 
staff is insufficient to cope with the business entrusted to it. 
Even the supreme court, much as it has been praised, has 
not wholly escaped criticism. It has been said of it that to 
a certain extent it feels the touch of public opinion — a 
tendency that is perhaps inevitable and not wholly to be de- 
plored; and that it has not always followed former decisions, 
a course that tends to unsettle the law. Its weakest point, 
however, lies in the fact that congress possesses the power to 
change the number of judges constituting the court — a 
power which enables it, if it can secure the cooperation of 
the president, to "pack" the court. Thus, if congress and 
the president are determined to secure a certain decision, 
congress needs only to increase sufficiently the number of 



JUDICIAL DEPARTMENT 229 

judges, and the president to appoint men who will give the 
desired opinion, in order to accomplish their ends ; but while 
this course is possible, it is hardly probable. 

291. Excellences. On the whole, however, the excellences 
of our judicial system have far outweighed its defects. It 
has proved extremely stable; and, through the independence 
and superior character of the judges in even the inferior 
federal courts, it has done much to counteract the evils aris- 
ing from the existence of an elective and ill-paid state judi- 
ciary. The supreme court has been most highly praised; 
and certainly its most grudging critic must admit that it has 
on the whole kept well out of politics, that its judges have 
been men of excellent legal ability and the highest moral 
character, that it has escaped all suspicion of corruption, and 
has maintained to a remarkable degree its judicial impar- 
tiality and its credit and dignity in the eyes of the people. 

Library References. — Ashley, §§ 374-388, 404-406; Macy, Chaps. XIX, 
XXI-XXII; Macy, First Lessons, Chap. XX; Dawes, Chap. X; Hinsdale, 
Chaps. XXXIV-XXXVI, XXXVIII-XXXIX; Willson, §§ 1082-1096; 
Fiske, pp. 260-262; Curtis, Vol. I, Chaps. XXVIII, XXX; Bryce, Vol. I, 
Chaps. XXII-XXIV; Harrison, Chaps. XX-XXI; Wilson, Congressional 
Government, pp. 34-35, 37-40; Alton, Chap. XVIII; Lalor, Article on Ju- 
diciary Treason; Woodburn, Chap. VI. 



QUESTIONS ON THE TEXT 

225. Give an outline of the system of the United States courts. 
How are their members chosen? 

226. Explain why judges enjoy longer terms of office under the 
constitution than officers in the executive and legislative depart- 
ments of government. 

227. How may judges of the supreme court be removed? 

228. Mention five classes of cases in which the United States 
courts have jurisdiction. Define jurisdiction. 



230 CIVIL GOVERNMENT 

229. Define treason and give its punishment. How may a per- 
son be convicted of treason ? 

230. Describe the organization and state the principal function 
of the highest court of the United States. 

231. What court decides whether a United States law is con- 
stitutional ? 

232. Mention two classes of cases in which the supreme court 
has jurisdiction. 

233. What is meant by original jurisdiction? 

234. In what cases has the supreme court original jurisdiction? 

235. In whom is vested the power to try cases against foreign 
ambassadors? 

236. State in regard to the judges of the supreme court, (1) num- 
ber, (2) length of term, (3) salaries. 

237. Who is the present chief justice of the supreme court? 
How long does he hold office ? 

238. Tell what you can of the United States court of claims. 

239. Give arguments tending to establish or to controvert the 
following: "The constitution follows the flag." 

240. Give two defects, and two points in favor of the system of 
federal courts. 



CHAPTER XIV 

THE STATES IN THEIR RELATIONS TO THE CONSTITUTION 

292. Admission of New States. Even before the adoption 
of the constitution, the admission of new states into the union 
was contemplated by the general government. The ordi- 
nance of 1787 had provided for the formation of states out 
of the Northwest Territory and for their admission to the 
union on terms of equality with the original thirteen, and 
the new constitution contained a provision similar in char- 
acter but wider in scope. It provided that "New states 
may be admitted by the congress into this union ; but no new 
state shall be formed or erected within the jurisdiction of 
any other state; nor any state be formed by the junction of 
two or more states, or parts of states, without the consent 
of the legislatures of the states concerned as well as of the 
congress." When the constitution was framed it was the 
expectation of the framers that all the territory then belong- 
ing to the United States would ultimately be formed into 
states; and the policy thus entered upon was subsequently 
extended to the Louisiana purchase and other early addi- 
tions to the territory of the United States. Since the Alaska 
purchase, however, and the more recent addition of our in- 
sular possessions, serious questions have arisen in regard 
to the policy to be pursued. The power to admit or to re- 
fuse to admit a territory to statehood lies with congress. 
No community can demand admission as a constitutional 
right. Neither does admission depend upon population, 
though in general it is readily granted when the territory 

231 



232 CIVIL GOVERNMENT 

possesses a population as large as that of a congressional 
district. Sometimes, however, for political reasons, admis- 
sion is granted to a territory with a much smaller popula- 
tion, as was done in the case of Nevada, which was admitted 
with a population of only 20,000, mainly for the purpose of 
securing its vote for the XHIth amendment. 

293. Methods of Admission. Admission to statehood is 
secured by one of the two following methods: (1) Upon ap- 
plication of the territory, congress passes an " enabling act," 
authorizing the people to form themselves into a state. The 
governor then calls a convention of delegates to draw up a 
constitution, which must contain no provisions repugnant to 
the constitution of the United States or the declaration of 
independence, and which must provide for the new state a re- 
publican form of government. Sometimes, also, the enabling 
act has required the new state to give over to the United 
States all title to unappropriated public lands within the 
territory, to guarantee religious liberty, and to provide a 
system of public schools free from sectarian control. When 
this constitution has been ratified by the people of the ter- 
ritory, the act of congress becomes operative and the terri- 
tory becomes a state and may elect its representatives in the 
usual way. (2) Sometimes, however, the territory, before 
applying for admission, has already elected a constitutional 
convention and framed a constitution. This it submits to 
congress for approval, at the same time applying for admis- 
sion. If congress approves the constitution thus made, it 
passes an act accepting and ratifying it, and the territory 
becomes a state. 

294. Guarantees to the States: Republican Government. 
In order to safeguard the interests of the states the constitu- 



THE STATES 233 

tion provides certain guarantees. First of all it is provided 
that the United States "shall guarantee to every state in this 
union a republican form of government." Since the general 
government was to be a federal republic, it was a practical 
necessity that that of the states should be of the republican 
type. 

295. Protection against Invasion. In addition to this guar- 
antee to the states it is further provided that the United 
States "shall protect each of them against invasion; and on 
application of the legislature, or of the executive (when the 
legislature cannot be convened), against domestic violence." 
The necessity of protecting the states from invasion was im- 
posed upon the general government by another clause of 
the constitution denying to the states the right to maintain 
troops or ships of war in time of peace. In case of invasion 
no formal application from the state for the promised pro- 
tection is necessary. The president is authorized by law to 
use the army and navy of the United States in such cases, 
or to call out the militia, without such application. 

296. Against Domestic Violence. While the last clause of 
the above provision guarantees to the states the protection 
of the general government against domestic violence also, 
such protection is furnished only upon application of the 
legislature or of the executive of the disturbed state. The 
presumption is that every state is capable of enforcing its 
own laws and that the state is the best judge of its own 
ability or inability to do so. By the requirement that aid be 
furnished only on the demand of the state, the general gov- 
ernment is deprived of all opportunity to meddle with state 
affairs under pretext of protecting the state. It has been 
decided by the supreme court, however, in a case growing 



234 CIVIL GOVERNMENT 

out of the Chicago riots in connection with the great railway 
strike of 1894, that in case such disturbances interfere with 
the execution of federal laws, the president may send troops 
to suppress them without application from the state. 

297. Obligations upon the States : Public Records. While 
the constitution thus guarantees to the states certain priv- 
ileges, it also imposes upon them certain duties toward each 
other. It requires that "full faith and credit shall be given 
in each state to the public acts, records, and judicial pro- 
ceedings of every other state;" and further provides that 
" congress may by general laws prescribe the manner in which 
such acts, records, and proceedings shall be proved, and the 
effect thereof." Legislative acts are proved or made au- 
thentic by the affixing of the seal of the state, and court 
records by the certificate of the judge, the signature of the 
clerk and the affixing of the seal of the court, where there is 
one. It is evident that, unless the legislative acts and court 
records of one state were accepted in the others, the states 
would soon be involved in endless confusion and litigation. 

298. Privileges of Citizens. Another of the obligations 
laid upon the states by the constitution is that they grant to 
the citizens of each state "all the privileges and immunities 
of citizens in the several states." By this provision a state 
is prohibited from denying to citizens of the United States 
coming to it from outside its own borders any of the priv- 
ileges granted to its own citizens. It must not regard them 
as aliens; it must not discriminate against them by legisla- 
tion ; it must permit them to come and go as freely, to acquire 
and enjoy property as freely, as it does its own citizens; it 
must grant them the same legal protection that it grants its 
own. 



THE STATES 235 

299. Fugitive Criminals. The constitution provides also 
for the return of fugitive criminals. "A person charged in 
any state with treason, felony, or other crime, who shall flee 
from justice, and be found in another state, shall, on de- 
mand of the executive authority of the state from which he 
fled, be delivered up, to be removed to the state having juris- 
diction of the crime." This process of securing the surren- 
der of fugitive criminals is called extradition. The demand 
or requisition is addressed by the executive authority of the 
state having jurisdiction of the crime to the executive of 
the state in which the criminal is found; and it rests with 
the latter to determine whether the person demanded is a 
fugitive from the justice of the state making the demand. 
The requisition is made in official form, by making complaint 
on oath or by presenting an official copy of the indictment. 

300. Limitations of State Power. In addition to guar- 
anteeing to the states certain privileges and imposing upon 
them certain duties toward each other, the constitution also 
lays upon their powers certain limitations, denying some 
powers to them absolutely, others provisionally. 

301. Absolute Limitations : Foreign Affairs. Thus it denies 
to them absolutely the power to do certain acts whose per- 
formance by the states would be a practical denial of the 
supremacy of the national government. It is a function of 
only absolutely sovereign states to enter into treaties, alli- 
ances, or confederations with other powers. To grant such 
a power to the individual states of the union would be to de- 
clare them independent of the general government, hence it 
is expressly denied to them by the constitution. So also 
with the right to grant letters of marque and reprisal. This 
is a part of the war-making power, which belongs to the 



236 CIVIL GOVERNMENT 

whole nation, not to any single portion of it. To grant it to 
the states would be to subject the whole nation to the risk 
of being involved in a war at any moment. 

302. In the Matter of Money, also, the constitution lays 
upon the states certain prohibitions. It forbids them (1) to 
coin money, (2) to emit bills of credit, and (3) to make any- 
thing but gold and silver coin a tender in payment of debts. 
The power of coining money had already been granted to 
the general government for the sake of securing uniformity 
in the monetary system. To have left a like power with the 
states would have been to defeat that end and to leave the 
confusion as great as it had been before the adoption of 
the constitution. The other provisions in regard to money 
were also dictated by the experience of the framers of the 
constitution during the revolution and under the articles of 
confederation. When we were studying the condition of 
affairs under the confederation we saw something of the dis- 
astrous effects that followed the issue of bills of credit 
(promises to pay, i.e., paper money) and of making such bills 
legal tender. 

303. Personal Liberty. The constitution also denies to the 
states absolutely the power to interfere with the personal 
liberty and equality of citizens by passing any bill of at- 
tainder, any ex post facto law, or any law impairing the obli- 
gation of contracts, or by granting any title of nobility. 
AH of these prohibitions except that in regard to the passing 
of laws impairing the obligation of contracts are laid, not 
upon the states only, but upon the United States as well, 
and we have already studied their meaning and purpose. 
The clause regarding the obligation of contracts, like so many 
others, was the result of experience. Under the confedera- 



THE STATES 237 

tion the power of the majority had often been used to change 
existing laws regulating contracts. The debtor class in par- 
ticular had employed this means of escaping their burdens 
and had thus wrought no little injustice. 

304. Provisional Limitations. Besides these absolute limi- 
tations upon the powers of the states there exist also some 
provisional ones. Some of these relate to matters of taxa- 
tion. The states are forbidden, without the consent of con- 
gress, to lay any tax upon exports or imports except such as 
may be necessary in order to pay the expense of inspection. 
If a tax is laid and the revenue from it exceeds the expense 
of inspection, all such excess must be paid into the national 
treasury. The inspection laws of the state are, moreover, 
subject to the revision and control of congress. The states 
are likewise forbidden to lay tonnage duties (duties levied 
on ships according to their carrying capacity) except with 
the consent of congress. It will be remembered that the 
regulation of commerce was one of the powers given into the 
hands of congress. If that power of regulation were to be 
effective, it was necessary that the laying of import and ex- 
port duties and of tonnage duties should also be under the 
control of that body. In the matter of war also the states 
are forbidden independent action except under certain con- 
ditions. They are forbidden to keep troops or ships of war 
in time of peace except with the consent of congress, or to 
engage in war, unless actually invaded or in such imminent 
danger that delay is impossible. The object of these restric- 
tions is, of course, to ensure the safety of the union as against 
the states. Closely connected with them is the prohibition 
upon the states to enter into any agreement or compact with 
each other or with a foreign power, except with the consent 



238 CIVIL GOVERNMENT 

of congress, the object being to prevent any alliance hostile 
to the union or to the exercise of the powers delegated to 
the United States. 

305. Doctrine of National Sovereignty. Besides stating 
thus distinctly the limitations, both absolute and provisional, 
placed upon the powers of the states, the constitution at- 
tempts to define still more clearly the relations between the 
state and the national government as follows: '-'This con- 
stitution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, 
shall be the supreme law of the land; and the judges in 
every state shall be bound thereby, anything in the consti- 
tution or laws of any state to the contrary notwithstanding." 
Moreover, it is further provided that not only every United 
States officer, but every state officer as well, shall take an 
oath to support the constitution of the United States. This 
is the constitutional statement of the doctrine of national 
sovereignty, the doctrine of the supreme authority of the 
national government over every state and every individual, 
which was only fully established by the civil war. In in- 
terpreting it we must take into account always the fact that 
the national government is a government of delegated pow- 
ers, and that " powers not delegated to the United States by 
the constitution, nor prohibited by it to the states, are re- 
served to the states, respectively, or to the people." 

306. Division of Powers: Reserved Powers. Let us look 
a little more closely into the meaning of this division of pow- 
ers between the state and the national government. In 
modern free governments all governmental powers must be 



THE STATES 239 

conceived of as originating with the people. In our own 
system some of these powers are exercised by the state 
authorities, some by the national authorities. Those be- 
longing to the states are nowhere expressly enumerated. In 
so far as the constitution defines them at all, it does so 
negatively, either by making specific grants of power to the 
national government, by laying express prohibitions upon 
the states, or by reserving certain powers to the whole 
people. All other powers, without definite enumeration, are 
reserved to the states. The powers exercised by the national 
authorities, on the other hand, are powers delegated by the 
people through specific grants; and within the sphere of the 
powers thus specifically granted the national authority is 
supreme. We have already seen that certain specific powers 
are prohibited to the states and that certain others are pro- 
hibited to the United States. It should be noted also that 
certain powers are denied to both these authorities. Thus 
the sovereign people in order to preserve certain rights be- 
lieved to be indispensable, reserved to themselves a sphere 
within which neither state nor national authority can oper- 
ate. There are thus two classes of reserved powers — those 
reserved to the states and those reserved to the people. 

307. Concurrent Powers. Besides these reserved powers 
and besides those specifically granted to the national gov- 
ernment, there should be mentioned another class of powers 
known as concurrent powers — powers that may be exercised 
by both state and national government. These concurrent 
powers arise through the fact that the mere grant of a spe- 
cific power to the national government does not of itself con- 
stitute a prohibition upon the states to exercise such a power. 



240 CIVIL GOVERNMENT 

For example, congress has been granted the power to pass 
uniform bankruptcy laws and has at various times exercised 
this power. Several national bankruptcy laws have been 
passed and repealed. But the states have also possessed 
and exercised the power to pass bankruptcy laws which, - 
however, cannot apply to existing contracts. To be sure, 
the operation of all such state laws is suspended, if, or in so 
far as, they are found to conflict with a national law; but 
upon the repeal of the national law, the state law becomes 
again operative, and the state retains as fully as ever its 
power to legislate upon the subject. 

308. Classes of Powers. To sum up, we may follow Mr. 
Bryce in distinguishing the following classes of governmental 
powers in the United States: 

(i) Powers vested in the national government alone; 

(2) Powers vested in the states alone; 

(3) Powers exercisable by either the national government 
or the states; 

(4) Powers forbidden to the national government; 

(5) Powers forbidden to the state governments. 

To these might be added another class — namely, (6) pow- 
ers vested in the people alone and exercisable only by the 
difficult process of amending the constitution. 

309. Conflicts of Authority. When conflicts of state and 
national authority arise, it becomes the duty of the courts, 
and, in the last resort, of the supreme court of the United 
States, to define the limits of state and national jurisdiction. 
In making such decisions the courts have followed the rule 
that the state is presumed to have jurisdiction wherever its 
powers have not been limited by the United States constitu- 
tion or its own constitution; while the national government 



THE STATES 241 

possesses a particular power only if it can be shown to have 
been granted, either specifically or by implication, in the 
constitution. 

Library References. — Ashley, §§ 133-135, 238-246, 561-562; Macy, 
Chaps. XXXIX-XLI; Macy, First Lessons, Chap. II; Dawes, Chaps. 
XIV-XV; Hinsdale, Chaps. XXVII, XL-XLII, XLIV-XLV, XLIX; 
Fiske, pp. 253-258; Wilson, §§ 891-893; Bryce, Vol. I, Chaps. XXVII- 
XXX; Curtis, Vol. I, Chaps. XXVII-XXVIII, XXXI-XXXII, Vol. II, 
Chap. VIII; Wilson, Congressional Government, Introduction; Lalor, Article 
on State Sovereignty ; Woodburn, pp. 77-87. 

QUESTIONS ON THE TEXT 

241. By what authority are new states admitted into the union? 

242. Describe the process of admitting a new state into the 
union. 

243. State and explain the restriction in the constitutional pro- 
visions for the admission of new states. 

244. Give the provisions of the constitution by which no state 
shall pay more than its just share of taxes. 

245. Give the substance of the constitutional provision regard- 
ing fugitive criminals. 

246. A person having committed a crime in one state flees to 
another state; how may he be captured and returned? What is 
this process called? 

247. Give the substance of the constitutional provision regard- 
ing (1) public records; (2) protection to states by the nation. 

248. Mention five things that the constitution forbids a state to 
do. 

249. Mention three important powers denied to the states, and 
give a reason in each case. 

250. Mention two governmental powers held by the United 
States and prohibited to the states. Give a reason in each case. 

251. Define legal tender. Is an American trade dollar a legal 
tender? 

252. What is the provision of the constitution regarding the 
laying of duties on imports or exports by any state ? Why is this 
provision necessary? 

253. What prohibition is laid on the states regarding treaties? 
Give the reason for this prohibition. 



242 CIVIL GOVERNMENT 

254. "The states are forbidden to issue letters of marque, to 
coin money, to emit bills of credit, to pass ex post facto laws, or to 
make anything but gold and silver coin a tender in payment of debt." 
Explain these prohibitions. 

255. Give the constitutional provision regarding powers re- 
served to states. 

256. Mention two points of difference between the rights en- 
joyed by a state and the rights enjoyed by a territory. 

257. Give in substance the provision of the constitution regard- 
ing the protection to states by the nation. 



CHAPTER XV 

THE BILL OF RIGHTS: THE INDIVIDUAL IN HIS 
RELATIONS TO THE CONSTITUTION 

310. The Bill of Rights. When the constitution was sub- 
mitted to the people for ratification, one of the chief objec- 
tions raised against it was that it contained no "bill of 
rights," no sufficiently explicit guarantee of the rights of 
the individual against the encroachments of the federal 
power. Several of the states, while ratifying it, accompanied 
their acceptance with a recommendation that certain amend- 
ments be added, safeguarding the liberties of the indi- 
vidual. Numerous amendments were proposed by the 
various states, many of them covering . the same ground. 
The first congress passed twelve, of which ten were ratified 
by three-fourths of the state legislatures, and were declared 
in force in 1791. These first ten amendments constitute 
our American bill of rights, so called from their resemblance 
to the English bill of rights enacted in 1689. 

311. Restriction only upon the Federal Government. It 
should be noted in connection with these first ten amend- 
ments that they were designed as restrictions upon the 
United States, not upon the states, and that they have 
been so interpreted by the courts. Unless the states are 
specifically mentioned, it is held that the limitations imposed 
by the United States constitution are imposed on the national 
government only. Thus, if a state should by its constitu- 
tion abolish the right of trial by jury, no national law, 

243 



244 CIVIL GOVERNMENT 

constitutional or statute, would be brought to bear to pre- 
vent. The reason for this is clear enough, if we remember 
the circumstances under which the constitution came into 
existence. It was framed in the hope of establishing a 
better government than that of the old confederation, and 
the government created by it was the national government, 
not those of the states. Some of the state constitutions ex- 
isted before the federal, and generally guaranteed to their 
citizens the rights afterwards provided for in the federal con- 
stitution by these amendments. The federal bill of rights 
was passed in order to secure to the citizens of the United 
States the rights already guaranteed to them as citizens of 
the states by their state constitutions; and the limitations 
of the federal constitution, unless otherwise expressly stated, 
apply to the national government and to it alone. 

312. Classes of Guarantees. Let us look now a little 
more closely at these limitations which the people deemed 
it necessary to impose upon the newly formed government, 
in order to protect the citizen against possible encroach- 
ments upon his individual rights. They fall into three 
main classes: (i) provisions guaranteeing to him the right 
of personal liberty; (2) those guaranteeing the right of per- 
sonal security; (3) those guaranteeing the right of private 
property. 

313. The Right of Personal Liberty is secured by the sev- 
eral provisions of the 1st amendment. This attempts to 
secure, first of all, freedom of religion by providing that 
"Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof." As 
we all know, many of the settlements in this country had 
been made primarily for the purpose of providing a means 



THE BILL OF RIGHTS 245 

of escape from the restrictions of a state church, and in 
such communities the desire for the separation of state and 
church was natural. Moreover, in view of the religious 
intolerance shown by many of the colonies, and the great 
variety of sects existing there, such a separation provided 
the only means of avoiding religious disturbances. The 
amendment also denies to congress the power of "abridg- 
ing the freedom of speech or of the press." This right 
of free speech and of a free press is one that our nation 
has guarded jealously, so jealously that it may be ques- 
tioned whether the right is not frequently abused. Finally, 
the amendment provides for securing "the right of the 
people peaceably to assemble, and to petition the govern- 
ment for a redress of grievances." This "right of petition" 
had been secured in England by the bill of rights of 1689. 
It might be supposed that the mere fact of possessing a 
republican form of government assured such a right to the 
people of the United States; but they evidently wished to 
make assurance doubly sure by making the provision a 
part of the constitution. The right of peaceable assembly 
was not generally recognized in Europe until a later period 
than that of our constitution. 

314. The Right of Personal Security (to be secure from 
injury in body or character) is guaranteed by a number of 
amendments or parts of amendments. The Ilnd amend- 
ment secures to the people the right to keep and bear 
arms, the reason assigned in the constitution itself being 
that a well regulated militia is necessary to the security of 
a free state. By the IVth amendment provision is made 
also for security against the unwarrantable seizure of persons 
as well as of property. It is required that persons shall be 



246 CIVIL GOVERNMENT 

seized only upon warrants issued upon probable cause and 
supported by oath or affirmation, and the person to be 
seized must be particularly described. Especial pains are 
taken to secure to persons accused of crime every oppor- 
tunity for their vindication and defense. All of the Vth 
amendment except the last clause, all of the Vlth amend- 
ment, and all of the VHIth are devoted to the provision of 
such guarantees. Unless the person accused is a member 
of the army or of the navy or of the militia in actual ser- 
vice, he can be held to answer for a capital or otherwise 
infamous crime only on the indictment or presentment of 
a grand jury. 1 If the penalty endangers life or limb, he 
cannot be tried twice for the same offense. He cannot be 
compelled to be a witness against himself, and he cannot 
be deprived of life, liberty, or property without due process 
of law. By the Vlth amendment it is provided that the 
accused shall be given a speedy public trial by an impartial 
jury of the district in which the crime was committed; he 
must be informed as to the nature and cause of the accu- 
sation; he must be confronted with the witnesses against 
him; he must be permitted to compel, if necessary, the 

1 A grand jury consists in most of the states of from 12 to 23 men, chosen 
by lot in every district to inquire into all the offenses committed in the dis- 
trict since the meeting of the last grand jury. Usually cases are brought 
before it by a public prosecutor, who formally charges certain persons with 
particular crimes. If the grand jury thinks the evidence against an ac- 
cused person sufficient to warrant a trial, it returns an indictment (a written 
accusation presented by a grand jury under oath, and upon the suggestion 
of the public prosecutor, to a court having jurisdiction of the offense charged 
therein) or a presentment (a written accusation presented by a grand jury 
upon its own motion, from its own knowledge or upon evidence laid before 
it). When an indictment has been found, the accused is given a copy of 
it and allowed time to prepare his defense. If he is unable to pay for coun- 
sel, the judge must appoint one, whose services are paid for out of the pub- 
lic treasury. 



THE BILL OF RIGHTS 247 

attendance of favorable witnesses; he must be permitted 
to secure or must be given the assistance of counsel for 
his defence. Finally, by the VHIth amendment the re- 
quirement of excessive bail, the imposition of excessive 
fines, and the infliction of cruel and unusual punishments 
are forbidden. 

315. The Right of Private Property is likewise guaranteed 
by several of these amendments or by parts of them. One 
of the annoyances to which the colonists had been subjected 
by the British government was the "billeting" of soldiers 
upon them. It was probably this experience that suggested 
the Illrd amendment, by which it was provided that no 
soldier should be quartered in any house in time of peace 
without the owner's consent; nor in time of war, except in 
a manner prescribed by law. The IVth amendment also, 
which, as we have already seen, provides against the un- 
warrantable seizure of persons, makes provision likewise 
against unreasonable searches or seizures of property, by 
requiring that searches be undertaken only on warrants 
issued upon an oath attesting a cause and describing the 
place to be searched and the things to be seized; while the 
last clause of the Vth amendment provides that no private 
property shall be taken for public use without just compen- 
sation. Finally, by the Vllth amendment it is provided 
that in civil suits, where the value in controversy exceeds 
$20, the right to trial by jury shall be preserved; and any 
reexamination of a case thus tried must be conducted ac- 
cording to the rules of the common law. 

316. General Guarantees. It would seem as if the above 
provisions, together with similar ones contained in the con- 
stitution as originally adopted, must furnish ample security 



248 CIVIL GOVERNMENT 

for the rights of the individual; but in order to deprive the 
federal government still more completely of any possible 
opportunity to encroach upon them, there was added the 
IXth amendment, declaring that "The enumeration in the 
constitution of certain rights shall not be construed to deny 
or disparage others retained by the people;" and the Xth, 
already considered elsewhere (§ 306), by which all powers not 
delegated to the United States nor prohibited to the states, 
are reserved to the states or to the people. 

Library References. — Ashley, §§ 554-560, 571-573; Macy, pp. 30-31 ; 
Dawes, Chaps. XI-XII; Curtis, Vol. I, Chaps. XXXIV-XXXV, Vol. II, 
Chap. VI; Fiske, pp. 269-270; Hinsdale, Chap. XL VII; Montgomery, pp. 
221-222; Lalor, Article on Bill of Rights; Woodburn, pp. 84-85. 

QUESTIONS ON THE TEXT 

258. Define a bill of rights. 

259. What provision is there in the constitution regarding free- 
dom of speech and of the press? Discuss briefly the reasons for 
this provision. Is it likely to be abused? How? 

260. State the substance of that provision of the constitution 
which insures religious freedom. 

261. Give in substance that provision of the constitution that 
secures (1) personal liberty; (2) protection to private property. 

262. What rights are secured by the constitution to persons 
accused of crime ? 

263. What provision is made for trial by jury in civil cases? 

264. What does the constitution provide with reference to search 
warrants? Explain the importance of this provision. 



CHAPTER XVI 

MISCELLANEOUS PROVISIONS 

317. The Public Debt. We have still to consider a few 
miscellaneous provisions of the constitution not studied in 
the preceding chapters. Of these, two concern themselves 
with the national debt, one forming part of the constitution 
as originally adopted, the other forming part of the XlVth 
amendment. By the first it was provided that all debts 
contracted before the adoption of the constitution should 
be as valid against the United States under the constitution 
as under the confederation. In this provision the framers 
of the constitution were merely declaring their adherence to 
the generally accepted principle of public law that a nation 
does not invalidate its debts or other contracts by changing 
the form of its government ; but the measure doubtless tended 
in no small degree to inspire confidence in the new govern- 
ment. The other provision of the constitution dealing with 
the public debt grew out of the civil war. It constitutes 
the fourth section of the XlVth amendment and provides 
that "The validity of the public debt of the United States 
. . . including debts incurred for payment ... for services 
in suppressing insurrection or rebellion, shall not be ques- 
tioned. But neither the United States nor any state shall 
assume or pay any debt or obligation incurred in aid of in- 
surrection or rebellion against the United States, or any 
claim for the loss or emancipation of any slave; but all such 
debts, obligations, and claims shall be held illegal and void." 

249 



250 CIVIL GOVERNMENT 

In other words, the United States assures the validity of all 
debts incurred in the suppression of the rebellion, but re- 
fuses itself to pay and requires the states to refuse to pay 
any incurred in support of the insurrection. 

318. Ratification. The Vllth and last article of the con- 
stitution proper provided for its ratification. Conventions 
were to be called in the various states for the purpose of rati- 
fying the instrument, and the acceptance of nine states was 
to be sufficient for its establishment between those states. 
We have already seen something of the difficulties in the way 
of ratification and of its ultimate accomplishment (§§ 105- 
106). 

319. Amendment. One of the conditions indispensable to 
the permanency of a constitution is a provision for its own 
amendment. States grow and change; and unless their 
constitutions, particularly if they are embodied in written 
documents, provide some means by which they can be made 
to conform in an orderly way to the altered conditions, the 
only recourse is to revolution, peaceful or otherwise. One of 
the chief defects of the articles of confederation, it will be 
remembered, was the practical impossibility of amending 
them. Profiting from their experience with them, the dele- 
gates to the constitutional convention attempted to provide 
a method of amendment which should be thoroughly prac- 
ticable, and should yet be difficult enough to prevent hasty 
and ill-considered changes. 

320. Possible Methods. As finally provided by article V 
of the constitution, amendments may be both proposed and 
ratified by two methods. They may be proposed either 
(1) by a two- thirds vote of both houses of congress, or (2) by 
a convention summoned by congress at the request of the 



MISCELLANEOUS PROVISIONS 251 

legislatures of two- thirds of the states. They may be ratified 
either (1) by three-fourths of the states through their state 
legislatures, or (2) by three-fourths of the states through 
conventions specially called for the purpose. It is left with 
congress to propose the method of ratification to be followed. 
Some restrictions were laid upon this power of amendment, 
however. The clauses in regard to the importation of 
slaves and the laying of direct taxes were not to be affected 
by amendment; and it was further provided that no state 
should be deprived of its equal suffrage in the senate with- 
out its own consent. 

321. Method Used. Up to the present time all amend- 
ments to the constitution have been proposed and ratified 
by the first of the two methods described above, i.e., con- 
gress has framed and proposed the amendments and the 
state legislatures have ratified them. No special conventions 
have ever been summoned for either purpose. The consent 
of the president to a constitutional amendment has been 
held by the supreme court to be unnecessary on the ground 
that "an amendment ... is an act in constitution-making 
and does not come within the provisions of the constitution 
investing the president with a negative." 1 

322. Existing Amendments. The number of proposed 
amendments that have been brought before congress for its 
consideration is very large, but only nineteen have ever re- 
ceived the necessary two-thirds vote and been submitted to 
the states. Of these, fifteen only have been ratified and be- 
come part of the constitution. These fifteen may be divided 
into three groups. In the first of these groups we find the 
first ten amendments, the bill of rights, whose origin and 

1 Woodburn, p. 154. 



252 CIVIL GOVERNMENT 

purpose have been already discussed (Chapter XV). They 
are hardly to be considered as true amendments to the con- 
stitution. They "ought to be regarded as a supplement or 
postscript to it, rather than as changing it." In the second 
group we find the Xlth and Xllth amendments, which, 
though they deal with quite different subjects, may really be 
classed together, since both are attempts to correct minor 
defects that have become apparent in the actual working of 
the constitution. These two amendments have also been 
discussed in connection with the matters with which they 
deal (§§ 226, 277). To the third group belong the last three 
amendments (XIII, XIV, and XV), which grew out of the 
civil war and which register in the written constitution the 
political results achieved by that struggle. 

323. XHIth Amendment. These three amendments we 
have not before considered. It should be noted in regard to 
them that they were ratified under very unusual circum- 
stances and cannot be regarded as the free expression of the 
then existing desires of three-fourths of the states. By the 
XHIth amendment slavery, except as a punishment for 
crime, is abolished in the United States and in all places 
subject to their jurisdiction. By the emancipation procla- 
mation freedom had been granted to all slaves in the states 
then in rebellion, but that did not include all the slave-hold- 
ing states, and in certain places slavery could still claim a 
legal right to existence. The ratification of the necessary 
number of states was obtained in 1865, and in December 
the amendment was declared a part of the constitution. 

324. The XlVth Amendment was a part of the plan of 
reconstruction entered upon at the close of the war. It 
was proposed by congress in 1866 and declared in force 



MISCELLANEOUS PROVISIONS 253 

two years later. It defines citizenship by declaring that it 
is possessed by all persons born or naturalized in the United 
States and subject to the jurisdiction thereof, thus making 
the freed slave a citizen. It forbids the states to make any 
laws abridging the privileges of citizens, depriving any per- 
son of life, liberty or property without due process of law, 
or denying to any person the equal protection of the laws 
— provisions likewise intended primarily to secure federal 
protection for the freedman. By section 2 of the amend- 
ment an attempt was made also to secure political rights 
for the negro, by providing that any state denying to male 
citizens twenty-one years old the right to vote should have 
its representation in congress cut down in proportion to the 
number of citizens thus debarred from voting. This pro- 
vision has never been made effective. The amendment also 
imposed some political disabilities upon certain classes of 
participants in the war. All state or United States officers 
who had taken part in the rebellion were rendered incapable 
of further office-holding until such disability should be re- 
moved by congress. An act of 1898 finally removed the last 
disability imposed by this section. 

325. By the XVth Amendment, proposed by congress in 
1869 and declared in force a year later, a direct attempt was 
made to secure full political rights for the negro. It had 
become clear that the indirect plan embodied in the second 
section of the XlVth amendment was destined to remain 
ineffective for a long time, if not forever. The XVth amend- 
ment provided that the right of citizens to vote should not 
be abridged on account of race, color, or previous condition 
of servitude. The wisdom of the policy that dictated the 
amendment has been much discussed. Like the second 



254 CIVIL GOVERNMENT 

section of the XlVth amendment, it has proved ineffective; 
for wherever the political consequences of the negro vote 
have been unpleasing to the white citizens, the states have 
found means of suppressing it. 

Library References. — Ashley, §§ 116, 212, 248-249, 253, 277; Dawes, 
pp. 413-417; Hinsdale, Chaps. XLIII, XL VI, XL VIII; Fiske, pp. 269- 
270; Wilson, §§ 1045-1046; Bryce, Vol. I, Chaps. XXXII; Curtis, Vol. I, 
Chap. XXXII, Vol. II, Chaps. XI-XII; Lalor, Article on Constitution; 
Woodburn, pp. 154, 338, 356. 

QUESTIONS ON THE TEXT 

265. In what two ways may amendments to the constitution 
be proposed? State one mode of ratification of an amendment. 

266. How long after its adoption before any amendments were 
made to the constitution? Give the substance of any of these 
amendments. 

267. How many amendments have been made to the constitu- 
tion ? Explain the purpose of the last three amendments. 

268. What amendments are included in the "bill of rights"? 

269. What are the principal provisions of the amendments of 
the constitution which have been adopted since the close of the 
civil war? 



CHAPTER XVII 

THE UNWRITTEN CONSTITUTION 

326. Development of the Unwritten Constitution. In the 

foregoing description of our national government reference 
has more than once been made to the existence of well- 
established political institutions and usages for which our 
written constitution makes no provision, but which have 
nevertheless become as fixed a part of the governmental 
machinery as have any of the institutions provided for by 
the written instrument. Such institutions and usages exist 
by the law of the unwritten constitution. In an earlier 
chapter (§42) it was pointed out that constitutional govern- 
ment may exist as well under an unwritten constitution — 
a constitution consisting of a mass of well-established prece- 
dents, usages, and statutes — as under a written one, in 
which such fundamental laws find expression in a single 
written document. Not only is this true, but it should be 
noted also that wherever a written constitution remains long 
in use without undergoing more or less extensive revision, it 
does so by virtue of the fact that there grows up beside it 
or within it an unwritten constitution, changing and expand- 
ing with the needs of the nation living under it. This un- 
written constitution has been called the flesh and blood of 
the constitution rather than its skeleton. Such a growth 
has taken place in the United States. Our real constitution 
to-day consists not only of the document so carefully elab- 
orated by the convention of 1789, but of numerous judicial 

255 



256 CIVIL GOVERNMENT 

decisions, legislative acts, and political customs, which have 
originated in attempts to interpret or supplement it. Thus, 
while our constitution has undergone very little change by 
way of amendment or revision of the written document, 
it has, by means of its unwritten portion, readily adapted 
itself to the ever changing needs of a rapidly expanding 
people. 

327. Original and Inherent Powers. One of the most 
important changes brought about by the growth of our un- 
written constitution is the enlargement of the powers of the 
national government. It has been frequently averred that 
our national government is one of strictly enumerated powers ; 
that it can do only those things which it has been given the 
right to do by an express grant of power, or at most by im- 
plication. This is unquestionably what the makers of the 
written constitution intended. As a matter of fact, however, 
the national government does exercise other powers than 
those expressly delegated to it or implied in the exercise 
of its delegated powers. In other words, the national gov- 
ernment exercises not only delegated and implied powers, 
but original and inherent powers as well; and the exercise 
of such powers has been held by the courts to be constitu- 
tional. In making the Louisiana purchase, and in passing 
the legal tender acts of the civil war, the national govern- 
ment was exercising powers neither delegated to it by the 
constitution nor clearly implied in such grants of power as 
it had received. A more recent example of the exercise of 
original powers by the national government is to be seen in 
the acquisition of territory as a result of the Spanish- Ameri- 
can war and in the establishment of governments for the 
acquired territory. 



THE UNWRITTEN CONSTITUTION 257 

328. Presidential Electors only Party Agents. Other in- 
stances of practices and precedents that have all the force 
of constitutional provisions have been noticed in the pre- 
ceding pages, but may be briefly recalled here. In our 
discussion of the electoral college the fact was noted 
(§ 229) that presidential electors are required by party cus- 
tom to vote in the electoral college for the candidates se- 
lected by their party at the nominating convention and at the 
polls. This custom, though it does not transgress the letter 
of the written constitution, nevertheless defeats the purposes 
of the framers in creating the electoral college. It was in- 
tended that this body should be made up of men versed in 
public affairs and acquainted with the merits of public men, 
and that it should exercise a wise discretion in its choice of 
the chief executive. In the first two presidential elections 
this ideal was more or less fully attained, though even in 
the second election party influence began to make itself 
felt in the selection of the vice-president. There was a some- 
what general expectation at least that for vice-president the 
federalists would vote for John Adams and the antifeder- 
alists for George Clinton. By the time of the third presi- 
dential election party organization was sufficiently devel- 
oped and party influence sufficiently strong to control the 
votes of most of the electors; and by the time of the fourth 
it had become so clearly understood that the elector's duty 
was merely to ratify his party's choice, that the struggle 
centred about the formally nominated candidates for presi- 
dent and vice-president rather than about the electors. 
Gradually the elector lost every vestige of the discretionary 
power with which the framers of the constitution had in- 
tended to endow him and became the merest party agent. 



258 CIVIL GOVERNMENT 

It is conceivable that an elector might be found rash enough 
to exercise his undoubted legal right to vote contrary to the 
wishes of those who elected him, and no legal penalty could 
be inflicted upon him; but such a course would mean for him 
political suicide. He would be looked upon as having be- 
trayed a public trust and as deserving of the severest con- 
demnation. No provision of the written constitution is 
more strongly safeguarded by the support of public senti- 
ment than is this unwritten law requiring the elector merely 
to register the vote of his party. 

329. Reeligibility of the President. Another unwritten 
rule that has come to have in practice the force of con- 
stitutional law is the rule limiting the reeligibility of the 
president. The written constitution sets no limit. The ex- 
isting rule that the president shall be reelected but once 
had its origin in the example of Washington. At the close 
of his second term he expressed his intention of declining 
reelection on the ground that the unlimited reeligibility of 
the president was not in keeping with republican institu- 
tions. He deemed it advisable to set the limit at two terms. 
Jefferson, who might also have been elected for a third 
term, followed the example of his predecessor; and public 
opinion set the seal of its approval upon the custom so 
strongly that few serious attempts have been made to elect 
a president for a third term. An attempt in the republican 
convention of 1880 to renominate Grant for a third term 
failed in spite of his popularity with his own party, and 
the decision there rendered has up to the present time been 
accepted as final. To be sure, the election of a president 
for a third term is quite within the bounds of possibility, 
and, if it should occur, would have to be regarded as a 



THE UNWRITTEN CONSTITUTION 259 

repeal of the unwritten rule against it; but so long as the 
rule commands the support of public opinion it must be re- 
garded as a part of the unwritten constitution. 

330. Custom and the President's Power of Removal. 
It is by a rule of the unwritten constitution also that 
the president possesses the power to remove, without the 
consent of the senate, officers appointed by him with the 
advice and consent of that body. The written constitution 
does not provide for the removal of officers except by the 
process of impeachment. 1 It is obviously necessary that 
there shall reside somewhere the power to remove incompe- 
tent or unfit officials whose offences fall short of actual vio- 
lations of law. A debate upon the question as to where 
such power should be lodged arose in the first congress in 
connection with a bill for organizing the first departments. 
It was held by some members that the consent of the senate 
was necessary for removal as well as for appointment; by 
others that the power of removal should belong to the presi- 
dent alone. Congress adopted the latter view, and it was 
not until President Jackson's abuse of the power revealed 
its possible danger that the wisdom of this construction of 
the constitution was seriously questioned. Even then no 
legislative action was taken, and it was only when the con- 
flict with President Johnson arose that congress made any 
attempt to interfere with the president's power of removal. 
By the tenure of office act passed in 1867 the consent of the 
senate to the removal of presidential appointees was made 
necessary, and thus the construction of the constitution 
adopted by the first congress was set aside. But it was not 

1 Art. I, Sec. 5 of the constitution provides that either house may expel 
a member by a two-thirds vote. 



260 CIVIL GOVERNMENT 

for long. Just a month after the inauguration of the next 
president came the repeal of all those provisions of the act 
that interfered with the president's power of removal, and in 
1886 what was left of the act was repealed. "It is now gen- 
erally held by publicists of both parties that the Tenure of 
Office Act was unconstitutional and would have been so 
held by the courts if it could have been tested." * Since its 
repeal there has been practically no question that the power 
to remove appointees without the consent of the senate is 
one of the president's constitutional prerogatives. 

331. The Senate and the President's Nominations. 
Closely allied with this unwritten rule in regard to the 
president's power of removal is another touching the mat- 
ter of appointments. In accordance with this rule the 
senate invariably confirms the president's nominations for 
cabinet officers. The control of other presidential appoint- 
ments has passed very largely into the hands of the senate. 
It confirms or rejects them on any ground it chooses — 
for party reasons or for even less commendable ones. 
Not so with the cabinet ; the president is allowed a free hand 
in the choice of his immediate assistants, and the senate con- 
firms his nominations without question. It is, of course, 
conceivable that the president might make a nomination so 
obviously unfit that the senate would reject it; but such a 
nomination is very improbable. 

332. The Cabinet and the Unwritten Constitution. This 
custom of unquestioning confirmation by the senate of cab- 
inet nominations finds its justification in the character and 
function of the cabinet itself. The nature of this body as 
it exists to-day and its relation to the president and to con- 

1 Woodburn, p. 189, text and note. 



THE UNWRITTEN CONSTITUTION 261 

gress are matters governed entirely by the law of the un- 
written constitution. Its function and its relation to other 
branches of the government have been already discussed 
(§§ 245-246); but it should be noted that in the cabinet we 
have a political institution of very great importance which is 
not only regulated by the law of the unwritten constitution, 
but is indeed a creation of it. 

333. The Committee System. Another important politi- 
cal arrangement which has become a part of our constitu- 
tion, though the makers of our written constitution did not 
foresee it or provide for it, is the committee system by which 
congress accomplishes its work. The system grew up as the 
easiest and most natural method of solving the problems 
confronting the first congress. Congress, unlike the British 
parliament, had no official leaders charged with the duty of 
preparing measures and presenting them for its considera- 
tion. That duty belonged to the whole body, which soon 
found that the most effective method of accomplishing its 
work was by dividing it among the members. At first 
measures were usually debated in committee of the whole, 
and then there was delegated to a special committee the 
task of preparing a bill in accordance with the conclusions 
reached in the debate. As time went on permanent com- 
mittees were appointed to deal with certain regularly recur- 
ring lines of business, and thus was gradually developed 
the extensive and complex committee system of the present, 
whose working we have already studied (§§ 198-200). 

334. Finally, our whole System of Party Government, so 
important a part of our real constitution, has developed 
under the guidance of unwritten law. Our written consti- 
tution nowhere contemplates such a system, and its growth 



262 CIVIL GOVERNMENT 

has wrought profound changes in the character of our 
government. The president, who was intended to stand out- 
side of and above all parties, has become avowedly a party 
leader. The speaker of the house of representatives, whom 
the constitution barely mentions and who was intended 
to act merely as a presiding officer, has come to wield tre- 
mendous influence over the course of legislation. The de- 
velopment of the party caucus, of the party convention, of 
our whole elaborate party organization and machinery, 
though not in contravention of the letter of the written con- 
stitution, is nevertheless contrary to the wishes and expecta- 
tions of the framers of that instrument. All these estab- 
lished institutions, usages, understandings, form parts of 
our unwritten constitution. If the student is to arrive at 
any adequate conception of the true nature of our govern- 
ment he must not lose sight of the existence of this ever 
changing unwritten constitution side by side with the written 
instrument under which it has grown up. 

Library References. — Ashley, §§ 229-230; Bryce, Vol. I, Chap. 
XXXIV; Woodburn, pp. 86-93; Hildreth, Vol. IV, p. 105 ff.; Curtis, Vol. 
II, Chap. Ill; Tiedeman, Unwritten Constitution of the United States; also, 
see Library References for Chapter VII. 

QUESTIONS ON THE TEXT 

270. State one objection to an unwritten constitution as a basis 
of national government. 

271. Is it the written or the unwritten constitution which deter- 
mines the following: (1) no state has a right of its own motion to 
secede from the union; (2) presidential electors are expected to 
vote for their party nominee ? Give reasons for your answer. 

272. What determines that a member of the federal house of 
representatives shall reside in the district from which he is chosen ? 
Give reasons for and against this practice. 



THE UNWRITTEN CONSTITUTION 263 

273. How is the real business of the federal senate and house 
of representatives conducted? Explain the system. How did it 
come to be established? 

274. The members of the various committees in the federal 
senate are elective. What is the practice in the house of repre- 
sentatives? Explain. 

275. How may a party caucus in congress determine legislation? 
Are the members of the party bound by the action of the caucus? 
Is this phase of our government a matter of the written or unwritten 
constitution ? Explain. 

276. Under our written Constitution, has the federal government 
the right in matters essentially national to exercise such original and 
inherent powers as belong to a sovereign state? Explain. 

277. What is meant by "senatorial courtesy" ? How far is it 
applied in the matter of presidential appointments ? Explain. 

278. By whom are the presidential appointees removable ? Is 
this matter determined by constitutional provisions ? Explain. 

279. How was the cabinet created? What regulates its action 
and its relation to the president and to congress ? Discuss fully. 

280. What penalty is inflicted for violations of the provisions of 
the unwritten constitution? What would happen, for instance, if a 
presidential elector should vote contrary to the wishes of his party, 
or a member of congress to the decision of his party caucus? 



CHAPTER XVIII 

STATE GOVERNMENTS 

335. In our study of the federal constitution we have 
already considered the relation of the states to the national 
government (Chapter XIV). We must now attempt to 
outline in a general way the government of the states them- 
selves. 

336. National Expansion since 1789 has been very rapid. 
Since that date there have been added to the union 32 new 
states with an area of 2,393,715 square miles and a total 
population, according to the last census, of almost 46,000,000. 
The area of the original thirteen is but 325,065, and their 
present population about 28,700,000. "Westward/' indeed, 
"the march of empire takes its way," and the power which 
New England and her sister states once exercised in politics 
is now shared with, if not entirely transferred to, the great 
states of the Mississippi valley and of the far west. 

337. Diversities and Uniformities among the States. When 
we consider how dissimilar are the elements that compose 
our population, how great the extent and how varied the 
character and climatic conditions of the territory over which 
that population is spread, and finally, how large a measure 
of political independence is left to the states by the federal 
constitution, we might expect a much wider diversity of 
political arrangements between the states than actually 
exists. Diversities there are, to be sure, but they are in 
matters of detail. In general outline the governments of 

264 



STATE GOVERNMENTS 265 

these forty-five great commonwealths are surprisingly alike. 
This similarity must be attributed in part to direct copying 
of portions of the constitutions of the older states by the 
newer ones; in part to the constant movement of popula- 
tion, which tends to prevent the growth of local peculiari- 
ties; in part to the influence of railways, newspapers, and 
telegraphs, which tends in the same direction; in part to 
the absence among the newer states of both natural and 
historical boundaries and of separate traditions. In all the 
states we shall find written constitutions, which provide sys- 
tems of government alike in all essential particulars. 

338. Origin of State Constitutions. The state constitutions 
are the direct descendants of the royal charters under which 
the early English settlements in America were made. From 
the beginning the English colonists in America were accus- 
tomed to the idea of a fundamental law, usually written, 
which created for them a frame of government, and which 
emanated from an authority superior to the ordinary law- 
making power in the colony. This superior authority re- 
sided at first in the British crown or in the crown and 
parliament ; but when the colonies became independent com- 
monwealths it passed over, not to the legislatures, but to 
the people of the newly created states. In the ten colonies 
that were either proprietary governments or royal provinces 
(§§ 49-50) it was deemed necessary to frame new constitu- 
tions or to make considerable alterations in the old ones; 
but in the three charter colonies (§ 48), viz., Massachusetts, 
Rhode Island, and Connecticut, the colonial charters were 
made to serve as state constitutions with only such changes 
as were made necessary by the substitution of the authority 
of the people for that of the crown. We have already seen 



266 CIVIL GOVERNMENT 

how largely the federal constitution was influenced by the 
preexisting state constitutions. As might be expected, it 
has in its turn influenced the constitutions of states admitted 
to the union since its adoption; but still more have they 
been influenced by the constitutions of the older states from 
which the settlers of the newer states have come. The 
original constitutions of the first thirteen states, as well as 
the constitutions of the newer states, have been not only fre- 
quently amended but even entirely remodelled, so that the 
constitutions now in force in the several states date from all 
periods of our history. 

339. Methods of Constitution-Making. At first state con- 
stitutions were formed either by the legislatures or more 
commonly by special constitutional conventions. These con- 
ventions were rarely required to submit their work to the 
people for approval; they were empowered not only to draft 
but also to adopt the constitution. Up to 1810 only three 
out of the twenty-five constitutions adopted had been sub- 
mitted to the voters for ratification. Gradually these meth- 
ods have been superseded by another. In practically all the 
states, constitutions are now framed by specially elected 
conventions, whose work is then submitted to the voters for 
ratification or rejection. 

340. The Present Process. In detail the present process of 
forming a state constitution is practically as follows : A res- 
olution is passed, in some states by a two-thirds vote, in 
others by a majority vote of the members of the state legis- 
lature, calling for a constitutional convention. If, at the 
next election, the voters signify a desire for revision of the 
constitution, another resolution of the legislature prescribes 
the number of members for the convention, the election dis- 



STATE GOVERNMENTS 267 

tricts, and the mode of election. When the convention has 
met and finished its work the new draft is submitted to the 
people for ratification, though only one-third of the states 
'require such popular sanction. Usually it is accepted or re- 
jected as a whole, though extra clauses on certain subjects 
are occasionally voted upon separately. In some states con- 
stitutional revision is required at stated intervals. 

341. Constitutional Amendments. If, instead of general 
revision, certain specific amendments to the constitution are 
desired, such amendments are first proposed by the state 
legislature. In a few of the states the proposal for amend- 
ment may be passed by a mere majority of the members of 
the legislature; others require a three-fifths vote, others a 
two-thirds vote, while still others require that the proposal 
be passed by two successive legislatures by votes varying in 
different states from a majority to three-fourths of the mem- 
bers elected. After the proposed amendments have been 
passed by the requisite majorities they are submitted to the 
people for ratification, and in this popular vote likewise 
special majorities are required by the different states. While 
the process of amendment may seem at first sight somewhat 
difficult, it has not been found so in practice. Constitu- 
tional changes in the states have been made frequently — 
too frequently, some critics believe. The fact that the more- 
recent constitutions require the consent of only one legisla- 
ture rather than of two successive ones to a proposed change, 
would seem to indicate a tendency to make the process a 
shorter and thus an easier one. When we come to consider 
the contents of state constitutions, we shall see that they 
deal in the most detailed manner with a great variety of 
matters, many of which are of such a character that laws 



268 CIVIL GOVERNMENT 

concerning them must be subject to somewhat frequent 
alteration : hence, constitutional revision is probably no more 
frequent than is necessary. 

342. Contents of State Constitutions : Historical Changes. 
The earlier state constitutions were brief, usually containing 
little more than a bill of rights and a frame of government. 
As might be expected in the case of governments formed 
under revolutionary influences, the new governments con- 
sisted of a strong legislature, a comparatively weak execu- 
tive, and a carefully organized and independent judiciary. 
As revolutionary influences died away there followed a sec- 
ond period in the history of constitution-making, lasting from 
about 1800 to the civil war. In the constitutions of this 
period the political tendency of the time toward democracy 
is clearly manifest. Over a large part of the country it be- 
comes an established principle that constitutions shall be 
enacted by popular vote. The suffrage is widely extended 
until it becomes practically manhood suffrage, except, of 
course, in the case of the negro. The legislature begins to 
be regarded as a mere body of agents to whom are intrusted 
no very large discretionary powers, and who must apply to 
the sovereign people for any extension of their powers. Very 
significant is the increasing length of the constitutions of this 
period, due to the incorporation of a mass of provisions dif- 
fering from ordinary statutes only in having been enacted 
directly by the people instead of the legislatures. The con- 
stitutions enacted since the civil war have shown a slight 
reaction against the democratic tendencies of the earlier pe- 
riod. There has been a disposition to strengthen the execu- 
tive and judicial departments of the government, and to 
curtail the power of the legislature both by laying restric- 



STATE GOVERNMENTS 269 

tions upon it and by resorting frequently to direct legisla- 
tion by the people. 

343. Existing State Constitutions usually contain a defini- 
tion of the boundaries of the state, a bill of rights, and pro- 
visions for the establishment of the three departments of 
government with their officers and functions together with 
regulations concerning the suffrage. In addition to these 
more essentially constitutional provisions, there occur a great 
number of miscellaneous provisions dealing with matters 
which properly belong to the domain of ordinary law; e.g., 
articles concerning taxation, education, local government, 
corporations, public lands, the administration of the state 
debt, the management of public institutions, the sale of in- 
toxicants, and many others. These later constitutions, 
moreover, not only cover this great variety of subjects, but 
they deal both with these and with the properly constitu- 
tional provisions, in much greater detail than was attempted 
in the earlier ones. Doubtless the principal motive in thus 
crowding into the constitutions much that might better take 
the form of laws on the statute books is popular distrust of 
the legislatures and consequent desire to legislate directly 
upon certain important subjects. 

344. The State Governments. In every state the govern- 
ment is divided into the three departments — legislative, ex- 
ecutive, and judicial. The state legislatures are all bicam- 
eral, the smaller house being termed in all states the senate, 
the larger usually the house of representatives, though in six 
states it is known as the assembly, in three as the house of 
delegates. The state executive consists of the governor and 
a number of other officials. The state judiciary consists of 
at least one state court with a number of minor courts. 



270 CIVIL GOVERNMENT 

345. Suffrage and Elections. Although in most of the 
states the suffrage approaches very nearly to universal man- 
hood suffrage, still the qualifications are by no means uni- 
form. Most of the states demand that the voter shall be 
of the male sex, twenty-one years of age, and a resident of 
the state for a certain length of time, and that he shall not 
be a criminal or a pauper. Beyond this the qualifications 
vary widely. In Wyoming, Colorado, and Utah women are 
allowed to vote. A majority of the states demand that the 
voter be a citizen; in others no such qualification exists, or 
a simple declaration of intention to become a citizen is 
sufficient. Mississippi, Massachusetts, Connecticut and Del- 
aware impose an educational test, requiring the would-be 
voter to read or to read and write. In Idaho the suffrage 
is denied to polygamists. Some of the states require that 
the voter register his name and certain other facts before 
he can vote. The reasons for the sex and age requirements 
are obvious. The residence qualification, if carried to the 
length it is in New York state, 1 tends not only to prevent 
repeating (voting more than once) at the ballot box but to 
secure from the voter some familiarity with local conditions 
before he casts his vote for a local officer. Citizenship, pre- 
supposes a certain interest in the affairs of a state which may, 
perhaps, not exist in the alien voter. In the more thickly 
settled districts, particularly in the cities, registration has 
been found a helpful means of combating the evil of repeating. 

346. The Voting is usually done on a single day between 
sunrise and sunset. For the election of United States officers 
a uniform day has been fixed by law, viz., the first Tuesday 

1 The state constitution demands residence in the state for one year, in 
the county for four months, and in the election district for thirty days. 



STATE GOVERNMENTS 271 

after the first Monday in November. Polling places are 
provided in charge of officers prescribed by state law. The 
voting is by ballot or by voting machines. Most of the 
states have adopted the Australian system of balloting, or 
some modification of it, in order to secure secrecy. By this 
system the voter, having been given an official ballot printed 
by the state and containing in parallel columns the names 
of all the candidates to be voted for at that election, with 
the party emblem, a circle, and the name of the party at 
the top of each column, enters a closed booth or room, 
alone. If he wishes to vote for all the candidates of his 
party {i.e., a " straight ticket "), he places a mark in the 
circle at the top of the column containing their names. If, 
on the other hand, he wishes to vote for one or more candi- 
dates from other parties than his own (i.e., a " split ticket "), 
he places a cross opposite the name of each candidate for 
whom he wishes to vote. He then hands the ballot to the 
proper officer for deposit in the ballot box. If the officer in 
charge of an election, or even a bystander, thinks that the 
voter does not possess the necessary qualifications, he may 
question his right to vote. This is called " challenging." 
The person challenged must then "swear in his vote," i.e., 
take an oath that he is entitled to vote at that election. 
In New York illegal voting is punishable by a period of 
imprisonment from three months to a year in length, and for 
certain offences of this nature an additional penalty is pro- 
vided depriving the convicted person of the right of suffrage 
for a period of five years after conviction. In New York 
also and in Florida betting on elections is forbidden by law. 
347. Election. After the election the voting places are 
closed and the election officers count or canvass the votes. 



272 CIVIL GOVERNMENT 

If the number of ballots does not agree with the list made 
of the voters, then it is the custom to draw out of the box 
the number in excess. Sometimes, especially when voting 
for the officers of the larger divisions of the state, as the 
county, congressional district, or state, the votes are can- 
vassed by two or three sets of officers. In most of the states 
a plurality only is necessary for an election. By plurality 
is meant the excess of the number of votes cast for the lead- 
ing candidate over those cast for each of his competitors in 
cases where there are more than two candidates and no one 
receives a majority of the votes. Thus, if A gets 450, B 
300, and C 250 votes, out of a total vote of 1,000, A is said 
to have a plurality over his competitors. In most of the 
New England states a majority — i.e., at least one over half 
of the total number of votes cast — is necessary to elect. 
It very often happens that a person is elected on a plurality 
vote who is really the choice of but a small part of the voters ; 
on the other hand, under the New England system it may 
be necessary to resort to a new election, no candidate hav- 
ing the necessary number of votes for a choice. 

348. The Legislature : Organization. The members of both 
houses of the state legislature are chosen by popular vote, 
usually from districts equal in number to the members of 
the respective houses. The basis of representation, there- 
fore, does not differ in the two houses except that the sena- 
tors are elected from larger, districts. Otherwise the houses 
differ merely in the number of members, the length of term 
and their special duties. The state senates now consist on 
the average of about thirty members. Nevada has the small- 
est senate, numbering fifteen members ; Minnesota the largest 
— sixty-three. In most of the states the term of the senator 



STATE GOVERNMENTS 273 

is longer than that of the representative, ranging from two 
years to four. In most of the states also the senate is only 
partially renewed at each election, so that this body possesses 
a continuity which the other house lacks. Some of the states 
also fix a higher age qualification for the senator, and until 
1897 Delaware imposed a property qualification. 

349. The Lower Houses are in general about three times as 
large as the senates, but the size of the houses varies greatly 
from state to state. In the west and south the houses are 
generally smaller than in the other states, particularly in 
New England, where the stronger local sentiment demands 
representation for smaller districts. The length of term 
varies from one year to four, most of the states electing for 
two. Except for a lower age qualification and a shorter pe- 
riod of residence for representatives, the qualifications for 
members of the two houses are essentially the same. The 
requirement that both senators and representatives shall be 
residents of the districts from which they are elected is 
made in some states by the constitution, and everywhere by 
custom. 

350. Sessions. In most of the states the sessions of the 
legislature are biennial. Only six states (Massachusetts, 
New York, New Jersey, Rhode Island, South Carolina, and 
Georgia) now hold annual sessions, among them, naturally, 
those which hold annual elections for members of the legis- 
lature. In most states also the length of the session is 
limited, usually to sixty days, but in three states (South 
Carolina, Wyoming, and Oregon) to forty. The governor 
may, however, convene the legislature in extra session, 
either on his own initiative or at the request of a certain 
proportion of the members. 



274 CIVIL GOVERNMENT 

351. Procedure. In organization and procedure the state 
legislature is very similar to the national. The lieutenant- 
governor, wherever provision is made for such an officer, is 
the presiding officer of the senate. The speaker, as the pre- 
siding officer of the house is called, is chosen by the members. 
In most of the states a majority of the members of each house 
constitutes a quorum. As in the national legislature, there 
are regulations securing to the members freedom of speech 
in the house and exemption from arrest during the session, 
providing for the expulsion of members by a two-thirds vote, 
for adjournment, for the keeping of journals, the judging of 
elections of members, the reading of bills, etc. The com- 
mittee system is in use in all the states, and in most of them 
measures must be approved by at least one- half of all the 
members of both houses before they are submitted to the 
governor. 

352. Restrictions on Powers of Legislatures. We have 
already seen (§§ 305-307) that under the federal consti- 
tution the states ■ possess all those powers not delegated 
to the United States by the constitution nor prohibited by 
it to the states. The powers of the states are not, like those 
of the national government, delegated powers, nor do any 
of the state constitutions expressly delegate powers to their 
legislatures. Except where specific limitations have been 
imposed upon it, the state legislature has power to deal with 
any subject coming before it. The people of the states have, 
however, shown a growing jealousy of the powers of their 
legislatures by placing upon them various important limi- 
tations and prohibitions. Upon certain subjects, varying 
from state to state, the legislatures are forbidden to pass any 
measures at all. Mr. Bryce classifies these forbidden meas- 



STATE GOVERNMENTS 275 

ures as follows: (1) statutes inconsistent with democratic 
principles, e.g., granting titles of nobility or creating a prop- 
erty qualification for suffrage or office; (2) statutes against 
public policy, e.g., tolerating lotteries, impairing the obliga- 
tion of contracts, etc.; (3) statutes special or local in their 
application; (4) statutes increasing the state debt beyond a 
certain limited amount, or permitting a local authority to 
increase its debt beyond a prescribed amount. In addition 
to these prohibitions upon legislation, the constitutions im- 
pose also a number of restrictions as to the treatment of 
bills, the majorities necessary to pass certain bills, the method 
of voting, the reading of bills and the intervals between read- 
ings, as well as regulations against changing the purpose of a 
bill during its passage, and requiring that only one subject be 
included in a bill and that that subject be expressed in the title. 

353. Special Powers of the Houses. In most of the states 
each house possesses special powers. The power of im- 
peachment belongs to the lower house, but the senate acts 
as a court for the trial of impeachment cases. A two-thirds 
vote is usually required for conviction. The senate also 
possesses the power of confirming appointments made by 
the governor. On the other hand the power of originating 
money bills resides, in a majority of the states, with the 
lower house. In Vermont the power of proposing amend- 
ments to the constitution is given to the senate alone, in 
Connecticut to the house. 

354. The Executive: Its Character. The organization of 
the executive power of the states differs very materially from 
that of the federal government. We have seen that the 
president is the real executive head of the nation. In him 
the chief executive authority is vested and to him are re- 



276 CIVIL GOVERNMENT 

sponsible the officials who administer the federal law. He 
appoints them and he may at any time remove them for 
cause. In other words, the executive authority of the 
nation is centralized. In the states, on the other hand, it is 
very much decentralized. The relations existing between 
the governor and the other principal administrative officers 
of the state are very different from those existing between 
the president and his cabinet. These state officials usually 
are not the governor's appointees. They are generally 
elected either directly by the people or by the legislatures 
and are in nowise responsible to the governor. Even where, 
as happens in a few of the states, some of these officials are 
appointed by the governor with the confirmation of the sen- 
ate, they are still not dependent upon him. Their duties 
are prescribed either by the constitutions of their states or 
by statute, and they are removable only for just legal cause. 
They are not the governor's subordinates or agents; they 
are his colleagues. Moreover, it cannot even be said that 
the governor and the other central administrative officials 
together make up the whole of the state executive. The 
power is still further shared by a large number of local offi- 
cials — county, town and municipal officers — who, though 
they execute state law, are so little responsible to the central 
executive authority that they are not usually regarded as 
state officers at all, but only as officers of their districts. 
Neither the governor, nor any one of his colleagues with 
the possible exception of the superintendent of education, 
exercises any real control over the local authorities by whom 
the laws are actually administered. 

355. The Governor. In spite of this diffusion of execu- 
tive power, however, the position of the state governor is 



STATE GOVERNMENTS 277 

by no means insignificant. If he is, as he has been called, 
only a "piece" of the executive, still he is a very important 
piece. Though he has no real control of the other execu- 
tive officers and administrative boards, still he has general 
oversight of them. He has some power of appointment, 
though not very extensive. As commander-in-chief of the 
state militia, it is his duty to see that order is preserved within 
the state and to repel invasion in case such occurs. The 
governor also has the power under certain restrictions to 
grant reprieves and pardons to persons convicted of crime. 
His most important duties, however, are those which have 
to do with the legislature, and which give him some control 
over legislation. At the beginning of each session he sends 
a message to the legislature for the purpose of informing 
the law-makers of the condition of the commonwealth and 
of recommending such measures as he deems necessary. In 
case the houses fail to agree on the time of adjournment he 
may' adjourn them. In most states, also, he may call special 
sessions, either with or without the request of a portion of 
the legislature. Most important of all, however, is his power 
of vetoing measures that he does not approve, a power given 
him in every state except three (Rhode Island, Ohio, and 
North Carolina). Bills may, of course, be passed over the 
governor's veto by majorities varying widely in the several 
states. In many of the states the governor may veto par- 
ticular items in appropriation bills; other bills must be ap- 
proved or disapproved entire. 

356. The Governor's Colleagues. In addition to the gov- 
ernor all the states have a number of other central executive 
officers, though not all the states have exactly the same ones. 
Many of them have lieutenant governors who succeed to 



278 CIVIL GOVERNMENT 

the governorship in case the governor is for any reason in- 
capacitated. All of them have secretaries of state and all 
have treasurers. Nearly all have attorneys-general. Most 
of them have superintendents of education, though some have 
boards of education instead. Some have auditors; in others 
the same duties are performed by comptrollers. In four of 
the states (Maine, New Hampshire, Vermont, and Massa- 
chusetts) there exist governor's councils. The secretaries 
of state keep and affix the seal of the commonwealth 
and keep all state records. The treasurers have charge of 
the public funds, which they pay out only on warrants issued 
by the auditors or comptrollers. The auditors or comp- 
trollers have general supervision of state finances. Like the 
national secretary of the treasury they present to the legisla- 
tures estimates of the amount of money needed for state pur- 
poses, though the state legislatures in general feel themselves 
even less bound than does congress by such recommendations. 
The attorneys-general are the legal advisers of the states 
and conduct all state cases before the courts. The super- 
intendent of education oversees the educational system of 
the state, often apportioning the school moneys and deciding 
disputes involving school authorities. In addition to these 
central executive officers there are in many of the states va- 
rious departments in charge of superintendents or boards, 
e.g. y departments of health, of labor, of agriculture, of char- 
ities and correction. In most cases these departments have 
not yet been given sufficient power to render their control 
effective, and a large part of the duties which naturally be- 
long to them are still under local control. 

357. Election, Terms, and Qualifications of Executive Offi- 
cers. Not only the governor but the other central executive 



STATE GOVERNMENTS 279 

officers as well are chosen by direct popular vote over the 
whole state. The terms vary in the different states. In 
general the terms of the other principal officers are the same 
as that of the governor and lieutenant governor. In most of 
the states the term is either two or four years; occasionally, 
however, one or three. Most of the states prescribe certain 
minimum qualifications, covering age, residence, and citizen- 
ship, which always apply to the governor and lieutenant 
governor, and generally to the other most important officers. 
All these officials are removable by impeachment. 

358. The Judiciary. Justice in the states is administered 
through a system of courts which exist quite independently 
of federal law. The two systems of courts, federal and 
state, are entirely separate, so that for cases falling within 
their jurisdiction the decision of the state courts is final. 
Only in cases involving federal law or in cases in which the 
nature of the parties to the suit is such that no state court 
has complete jurisdiction (e.g., suits between citizens of dif- 
ferent states) does an appeal lie to the federal courts. 

359. The System of Courts. The judicial systems of the 
different states vary so considerably that only the most gen- 
eral description is applicable to all of them. Usually there 
are four grades of state courts. The lowest are those pre- 
sided over by justices of the peace and having jurisdiction 
over petty civil and criminal cases. Their decisions are al- 
most always subject to appeal to higher courts. Next above 
them stand the county or municipal courts, which hear ap- 
peals from them and have original jurisdiction in civil cases 
where the amount involved is large, and in criminal cases of 
the graver character. Next come the superior courts, called 
also circuit or district courts, which hear appeals from the 



280 CIVIL GOVERNMENT 

lower courts and have original jurisdiction of the most gen- 
eral character in both civil and criminal cases. The highest 
court in the state is usually the supreme court. In most of 
the states its jurisdiction is only appellate, though in a few 
of the older states it has original jurisdiction as well. In 
five of the states (New York, New Jersey, Louisiana, Ken- 
tucky, and Illinois) there are courts higher than the su- 
preme court called courts of appeal. 

360. Special Courts. In addition to these, some of the 
states provide special courts for the trial of cases in equity 
(cases arising out of grievances for which the common law 
furnishes no remedy). Usually, however, instead of pro- 
viding special courts, the states have given jurisdiction over 
such cases to one or more of the regular courts. Much more 
general is the special probate court, whose business it is to 
see to the disposition of the property of deceased persons. 
In many states, however, this function is also performed by 
the ordinary courts. 

361. Judges. The judges of most of the state courts, both 
higher and lower, are elected, those of the supreme court 
usually by the people of the state at large; those of circuit, 
county, municipal, and other courts, by the electors of the 
area in which they serve. In some states, however, the 
higher judges are chosen by the legislature; in a few others 
they are appointed by the governor with the advice and con- 
sent of the senate, and in three of the New England states 
they are appointed by the governor and council. 

362. The Term of Office varies from two years to tenure 
during good behavior. In general the higher judges hold 
office for longer terms than do the lower ones. Justices of 
the peace are usually elected for two or four years, circuit 



STATE GOVERNMENTS 281 

judges for four or six years, supreme judges for eight or 
ten. Most of the states impose an age and residence quali- 
fication upon candidates for judgeships, and some require 
tests of legal fitness also. 

363. State Finances. The state government like the na- 
tional government cannot exist without money. The power 
to tax the people of the state is therefore vested in every 
state legislature. "Although the budget of the state is not 
large in proportion to the wealth of its inhabitants," a con- 
siderable revenue is required, not only to pay the officers 
and the militia, but to sustain the various enterprises in 
which the state is interested, such as asylums and institu- 
tions for the unfortunate, schools, canals, and the like. If 
the state is in debt, some of this revenue goes toward paying 
the interest on its bonds. 

364. Taxes. State taxes usually take the form of direct 
taxes on real estate and personal property, or in some cases on 
collateral inheritances. A few states impose a poll tax, which 
is often a prerequisite for voting. Almost every state in addi- 
tion imposes certain indirect taxes. Such are the taxes on par- 
ticular trades or occupations, which sometimes take the 
form of license taxes; or the taxes on franchises, i.e., the 
right to operate railroads, etc. ; or again taxes on railroad stock. 

365. Exemptions. Certain properties are exempt from 
taxation. Among these are public buildings, since they are 
used for public purposes, and it is for such purposes that 
taxation is levied; institutions or societies for the improve- 
ment of the people, such as schools, churches, charitable 
institutions and agricultural societies; the necessary imple- 
ments of the farmer or mechanic; and United States securi- 
ties. In some states, possibly with the idea of encouraging 



282 CIVIL GOVERNMENT 

thrift and industry, the law exempts deposits in savings- 
banks from taxation. 

366. Assessment. The first step toward raising revenue 
by direct taxation is assessment. Certain local officers, 
known as appraisers or assessors, chosen by the local gov- 
ernments but acting under state laws, ascertain the value 
of the real estate and personal property of the various lo- 
calities. As the contribution of the communities is based 
on this valuation, it is to their interest to put it as low as 
possible, and thus to avoid their share of the state burdens. 
To corre.ct abuses of this sort, many states have a state 
board of equalization for the purpose of having the taxable 
property of the localities equally and fairly valued. Their 
work is sometimes supplemented by similar county boards. 
Many states have also taken the assessment of certain sorts 
of widely diffused property, e.g., railways, telegraph and 
telephone lines, out of the hands of the local assessors and 
have established boards of state assessors to deal with them. 

367. Apportionment and Collection. When the state has 
determined the amount to be raised, it is apportioned through- 
out the state according to the amount of taxable property 
as determined by the returns received from the assessors. 
The amount to be raised is divided by the amount of taxable 
property, and the per cent obtained constitutes the state tax 
rate. With the valuation of the county property before 
them it is easy for the county officials to ascertain in a sim- 
ilar manner the county rate, and the town officers the town 
rate. State, county, and town taxes are usually paid in one 
sum. When the collector receives the taxes the town offi- 
cers retain the part raised for town purposes and send the 
remainder to the proper county officers, who similarly retain 



STATE GOVERNMENTS 283 

the county taxes and remit the rest to the state authorities. 
Indirect taxes are usually paid directly to state officials. 

368. Restrictions upon Taxing Power. Various restric- 
tions have been imposed upon the states by their constitu- 
tions in this matter of raising and spending money. "Taught 
by sad experience of reckless legislatures," the people limit 
the amount that may be raised annually by taxation. Some- 
times this limitation takes the form of a requirement that 
the sum raised shall be no more than sufficient to meet cur- 
rent needs. In their fear of state indebtedness they have 
limited the amount that may be borrowed, sometimes to an 
absolute sum, sometimes to a certain percentage of the 
assessed valuation of the taxable property. They have be- 
sides forbidden the state to contract debts without immedi- 
ately providing a sinking-fund to discharge the obligation. 
Similar restrictions also exist to prevent indiscriminate bor- 
rowing on the part of the local governments under state 
jurisdiction. 

369. Education. One of the most important functions en- 
trusted to the state governments, is the maintenance and 
control of the public school system. In this work of edu- 
cating the masses, a work so important under a republican 
form of government, the national government by extensive 
land grants has aided the states most liberally; but it has 
left the control of the public schools, both elementary and 
higher, to the states. 

370. The School System. The earliest public schools were 
organized not by the states but by the localities that desired 
them, and they formed no part of any system. Gradually, 
however, as the need for better organization, better instruc- 
tion, and greater uniformity became apparent, the states be- 



284 CIVIL GOVERNMENT 

gan to regulate public education by law. At first there 
were no state school officials, and the attempt at state con- 
trol was to a great extent ineffective. Now, however, the 
schools are everywhere completely regulated by state law, 
though the law is still administered for the most part by 
local officers. In each state the law determines, among 
other things, what shall be the administrative unit for the 
school system — county, town, or district ; prescribes a min- 
imum list of subjects to be taught; fixes a minimum school 
year; and lays down the requirements which must be met 
by the teachers of the state. 

371. Various Grades of Schools are maintained by all the 
states. The common schools, sometimes called district 
schools, and graded schools, furnish facilities to everyone de- 
siring an elementary education. High schools and acade- 
mies give instruction in the academic branches and prepare 
for college; while a higher education is to be obtained in 
colleges and universities, many of which are supported 
wholly or in part by state funds. Most of the states of the 
west maintain at least one state university, where tuition is 
free to its citizens. They have also established technical 
and agricultural schools and colleges for the purpose of in- 
creasing the industrial efficiency of their citizens. The 
states also endeavor to secure the best instruction possible 
by creating normal schools for the training of teachers and 
by fixing tests for candidates for positions as teachers. 

372. State Administration of Schools. In nearly every 
state in the union the educational system is under the gen- 
eral supervision of a state board of education or a state su- 
perintendent, or both. These officials are chosen in various 
ways in the different states, though the boards are perhaps 



STATE GOVERNMENTS 285 

more frequently appointed by the governor or legislature, 
the superintendents more often elected by the people. It is 
the business of these officials to interpret and enforce the 
school laws ; to care for the state school funds ; to attend to 
the examination of teachers, except where that duty has been 
intrusted to county boards; and in some cases to select the 
text-books. It is their duty also to study educational meth- 
ods and to keep themselves generally informed in educa- 
tional matters with a view to improving as rapidly as pos- 
sible the schools of their state. 

373. Local Administration of Schools. Below these state 
officials there are usually county boards of education and 
county commissioners or superintendents. The examination 
of teachers is usually conducted by these boards under state 
law. The county commissioners or superintendents are 
charged with the duty of visiting and inspecting the schools 
and distributing the school funds among them. In the rural 
sections school law is administered by officers usually called 
trustees chosen for a term of three years by the people of 
either the school district or the township. Cities have, under 
state laws of course, their own separate school systems, ad- 
ministered by their own boards of education and city super- 
intendents. 

374. Compulsory Education. Many states regard an ele- 
mentary education as a matter so important and so closely 
connected with the stability of republican institutions that 
they have enacted laws compelling the attendance of all 
children between certain ages for a certain length of time 
each year. 

375. Importance of State Government. As indicated above 
the federal government left to the states all those powers not 



286 CIVIL GOVERNMENT 

delegated by them to the nation nor forbidden by the con- 
stitution to the states. How vital, then, are the issues at 
stake in our state elections ! President Garfield said: "The 
state government touches the citizen and his interests twenty 
times where the national government touches him once. 
For the peace of our streets and the health of our cities; for 
the administration of justice in nearly all that relates to the 
security of person and property, and the punishment of 
crime; for the education of our children, and the care of 
unfortunate and dependent citizens; for the collection and 
assessment of much the larger portion of our direct taxes, 
and for the proper expenditure of the same — for all this, 
and much more, we depend upon the honesty and wisdom 
of our General Assembly (of Ohio) and not upon the Con- 
gress at Washington." When it is remembered further that 
all the important reforms that have agitated the people of 
England during the last century, with the possible exception 
of the corn laws and the abolition of slavery, would have 
been proper objects for our state rather than our national 
government, the relative importance of good management in 
state affairs becomes apparent. 

Library References. — Ashley, §§ 412-437, Chaps. XIX, XXII; Macy, 
Chaps. VIII-XI, XIII; Macy, First Lessons, Chaps. III-XV, XXIV, 
XXVIII; Dawes, Chaps. XIII-XIV; Fiske, pp. 173-188; Hinsdale, 
Chaps. XLIX-LIV; Bryce, Vol. I, Chaps. XXXVI-XLV; Wilson, §§ 885- 
994; Dole, Chaps. XV-XVII, XIX; Lalor, Article on Constitutional and 
Legal Diversities in States; Woodburn, Chap. VII. 

QUESTIONS ON THE TEXT 

281. In some states, women, aliens, infamous criminals, idiots, 
minors, and lunatics are excluded from voting. Give reasons for 
or against the exclusion in each case. 



STATE GOVERNMENTS 287 

282. Should paupers be allowed to vote? Give reasons. 

283. Give a reason for the law requiring registration of voters. 
Why is such a law more important in a city than in a small village ? 

284. Give one reason why a legislature should consist of two 
bodies. 

285. Give arguments for or against biennial sessions of the 
state legislature. 

286. What is the capital of a state, and why so called? 

287. Describe the process of assessing property for the purpose 
of taxation, and show how the amount of money to be raised by 
each town is fixed. 

288. Mention three kinds of property that are usually exempt 
from taxation, giving reasons. Why has the state the right to 
impose taxes? 

289. What is meant in general by a compulsory education law? 
Why is such a law desirable ? 

290. May a state levy and collect an income tax? 

291. What government touches the individual the more fre- 
quently — city, state, or national ? Why ? 

292. Mention the different state courts. What is a police court? 

293. Under what circumstances may cases be transferred from 
state to federal courts? 

294. If legislation on any subject is desired by citizens of the 
state, how is the attention of the legislature secured ? 



CHAPTER XIX 
LOCAL GOVERNMENT 

376. Types of Local Government. We have already traced 
in outline the origin of the various forms of local govern- 
ment in the United States (§§ 51-65). It remains for 
us now to study in somewhat greater detail existing ar- 
rangements. Aside from municipal government there are, 
as we saw in Chapter III, three types of local govern- 
ment: the town (township) type, the county type, and the 
mixed or compromise type, each predominant in its own 
section of the country. In the six New England states 
local government is town government. In the south the 
county is the characteristic unit. Elsewhere the mixed sys- 
tem prevails, though with considerable variety of form, the 
preponderating influence falling now to the town, now to 
the county. 

377. The Town System. It should be remembered that 
the term " town " as used in New England is the name of a 
rural, not an urban district. Elsewhere these districts are 
usually called townships. The characteristic feature of town 
government is the town meeting or general assembly of the 
voters of the town, which is held annually, generally in the 
spring, or oftener if summoned. Notice of the time and 
place of meeting and of the business to be considered must 
be given at least ten days before the meeting occurs. This 
body passes all laws necessary for the government of the 
town, elects new officers, receives the reports and audits the 

288 



LOCAL GOVERNMENT 289 

accounts of outgoing officers, votes the amount of money 
required for current expenses and appropriates it to the 
various local purposes, and in general manages local matters 
of every kind. 

378. The General Executive Officers of the Town, called 
selectmen, vary in number from three to nine and are elected 
annually. In addition to these there are also usually a 
town clerk, a treasurer, assessors, a collector, a school com- 
mittee, surveyors of highways, constables, and justices of 
the peace. Their names serve to indicate their duties. 
Where local needs demand, there are also such officials as 
cemetery and library trustees. 

379. The County in New England. To the towns belong 
all the really vital functions of local government. The 
county exists in New England, but its functions are compar- 
atively unimportant. It is first of all a judicial district and 
elects the necessary judicial officers. The chief administra- 
tive officers are the county commissioners and the county 
treasurer. Their principal duties are the care and mainten- 
ance of the county buildings — court houses, prisons, etc. ; 
the issuing of certain licenses ; the laying out of inter-town 
roads; and the apportionment of the county tax among 
the towns. 

380. The County System. In the south the unit of local 
government is the county. It performs not only the judicial 
functions and such other administrative functions as fall to 
the share of the county in New England, but most of those 
that there belong to the towns as well. Its principal officers 
are the board of county commissioners, the county treasurer, 
the auditor, and the superintendents of roads, of education, 
and of the poor. The county has also its full complement 



290 CIVIL GOVERNMENT 

of judicial officers, including sheriff, clerk, surrogate, coroner 
and state's attorney. There are sometimes also assessors 
and collectors of taxes. County officers are nearly all elected 
by the people, usually for one or two years. 

381. Smaller Divisions. Though the county is the unit 
of local government where the county system prevails, still 
there exist subdivisions smaller than the county. These 
vary from state to state both in name and in character. In 
a few states they are called townships and do not differ 
appreciably from the townships of many of the middle and 
western states; but nowhere is there anything corresponding 
to the New England town with its primary assembly — the 
town meeting. The officers of these minor local divisions 
exercise their powers for the most part under the control 
of the county authorities. Most important among them are 
the local school officers. Several writers have pointed out 
that where the township system is growing up in the south, 
it is growing up out of school organization, so that the 
school "is becoming the nucleus of local self-government in 
the South now, as the church was in New England two 
centuries ago." 

382. The Mixed System. The township- county system, in 
use throughout the middle and northwestern states, presents 
very considerable variations. Under this plan of local gov- 
ernment, county and town are much more thoroughly inte- 
grated than in New England or the south; but the system 
still presents two main types, one of which emphasizes the 
importance of the town, the other that of the county, accord- 
ing to the extent to which the township system has been 
adopted. Where the township has a vigorous life of its own, 
there the town meeting is found, exercising very real if some- 



LOCAL GOVERNMENT 291 

what less extensive power than that of New England. Where 
it is less developed there is no town meeting; there is only 
popular election of officers, who thereupon constitute the ex- 
ecutive machinery of the town. In general the number and 
character of township officers vary with the degree of de- 
velopment attained by the township system, the less devel- 
oped townships electing fewer officers. The selectmen of 
the New England town have everywhere disappeared, at 
least in name. The officers most nearly corresponding to 
them in function are called in some states supervisors, in 
others trustees. Sometimes one, sometimes more, are elected 
in each township; and they not infrequently perform duties 
that in the New England town are performed by several 
different officers. 

383. The County in the Mixed System. Naturally, wher- 
ever the importance of the township has been emphasized 
that of the county has tended to decline; but the county is 
everywhere under the mixed system of more significance 
than in New England. Its organization and its functions 
vary somewhat widely. Its central administrative authority 
is sometimes a board composed of the supervisors of the 
townships. Sometimes it is a board of three or more com- 
missioners elected directly by the people of the county. 
Besides the functions performed by the New England coun- 
ties, these counties of the township-county system are often 
charged with the duty of poor relief, with the general over- 
sight of township expenditure, and with the business of tax 
equalization. 

Library References. — Ashley, Chap. XX; Macy, pp. 12-19; Fiske, pp. 
54-57, 73-74, 81-94; Hinsdale, pp. 397-405; Bryce, Vol. I, Chaps. XL VIII- 
XLIX; Wilson, §§ 995-1028; Dole, Chap. X. 



292 . CIVIL GOVERNMENT 

QUESTIONS ON THE TEXT 

295. How are counties formed? Towns? School districts? 

296. Discuss the present importance of the town as a unit of 
government. 

297. Mention the legislative body of a county. Give the chief 
executive officer and his duties. 

298. How are the poor provided for by different localities? 

299. Is there any good reason why county officials should be 
partisans? What proportion of their duties relate to political 
policies? Is administrative ability essential? 

300. Give illustrations of the exercise of federal government, 
state government, and local government in your own town or city. 
Of which government do you observe the most signs? Of which 
the fewest signs? Of which government do the officers seem most 
sensitive to local opinion ? 



CHAPTER XX 

MUNICIPAL GOVERNMENT 

384. Rapid Growth of Cities. "There is no denying that 
the government of cities is the one conspicuous failure of 
the United States," writes an eminent observer of American 
political conditions. Whether we accept this conclusion, or 
that of a prominent educator and man of affairs that the 
" average American city is not going from bad to worse . . . 
the general tendency is toward improvement," the concen- 
tration of more than thirty per cent of our population in 
cities makes the problem of municipal government one of 
the most important in America. The American of the pres- 
ent is confronted with problems of government of which his 
forefathers of a hundred and twenty-five years ago never 
dreamed. 

385. Difficulties of Municipal Government. In part these 
difficulties have come about through the mere rapidity with 
which our cities have grown up. In a few decades, some- 
times in a few years, very considerable populations have 
found themselves gathered about some railroad junction or 
the plant of some great industrial enterprise and confronted 
with the necessity of supplying themselves as soon as pos- 
sible with light, pavements, sewers, schools, public buildings 
of all kinds, in order to provide for their own convenience, 
health, and safety. Under such circumstances the demand 
is always for the immediate supply of the people's needs, not 
for the best and most economical means of permanent sup- 

293 



294 CIVIL GOVERNMENT 

ply. The result is that considerable sums of money are ex- 
pended on mere makeshift public improvements, which must 
soon be replaced by something better planned and more 
permanent. Then, too, when public works are undertaken 
thus hastily, the temptation to extravagance, if not to actual 
dishonesty, is considerably increased. This necessity for the 
expenditure of great sums of money within a very short 
period for public works makes it necessary for the cities to 
borrow largely, so that nearly all our cities are bearing great 
burdens of municipal debt, whose management increases in 
no small measure the difficulties of municipal government. 
Finally, increase in the size of cities results in an astonishing 
increase in the complexity of municipal government, in the 
number and variety of matters to be attended to by the 
municipal authorities ; and the more complex it becomes, and 
the more highly specialized and technical becomes the service 
of the different departments, the less is it possible for the 
ordinary citizen, or even the extraordinarily well-informed 
citizen, to criticise it all intelligently. If, therefore, muni- 
cipal government in the United States has been "a con- 
spicuous failure," it is a condition of affairs not greatly to 
be wondered at nor altogether to be despaired of. 

386. The City: Its Character. In the United States the 
term " city " is applied to a community, which, on account of 
its dense population, has secured a charter from the state 
legislature, granting it a special form of government. For 
purposes of study, however, there should be included along 
with cities proper the large number of incorporated villages 
and boroughs, and the towns of the south and west, which 
are cities in miniature and are created either by a particular 
act of incorporation or by conforming to certain general state 



MUNICIPAL GOVERNMENT 295 

laws. The same problems, only on a smaller scale, arise in 
these divisions; the same offices appear, though not so nu- 
merous. The description, then, of city government applies in 
general to the government of these smaller communities. The 
difference is one of degree. 

387. Functions of City Government. City government may 
be said to have two sets of functions to perform correspond- 
ing to the twofold nature of the city, first as a subdivision of 
the state, and second as a centre of population more or less 
dense. As a subdivision of the state the city is charged with 
the execution of certain state laws, some of them entirely gen- 
eral in character, such as those providing for the preserva- 
tion of the peace, granting licenses, preventing adulteration 
of food and the like; some of them general, but having to 
do especially with local government, such as those requiring 
the maintenance of schools and the care of the poor. In 
addition to this administration of state law, the city must 
provide for its own local needs in such matters as the pav- 
ing, grading, and cleaning of streets, the furnishing of 
water, of light, of fire protection, and of protection against 
disease. 

388. Organization of City Government. The city charter, 
or the act of incorporation, outlines more or less in detail 
the frame of government. Everywhere the same separation 
between executive, legislative, and judicial departments which 
was seen in the state and national governments is character- 
istic of the city government. The chief executive official is 
the mayor, who is assisted by other executive officers or 
boards, some of them elected directly by the people, others 
appointed by the mayor or the city legislature. The legis- 
lative body consists sometimes of one chamber, sometimes 



296 CIVIL GOVERNMENT 

of two, the whole body being in either case elected directly 
by the people. Where there are two houses, the upper 
house is usually called the board of aldermen, the lower the 
common council. These differ " very much as the two 
houses of a state legislature differ, in the number and size 
of the districts which their members represent." Where 
there is but one chamber it is called in some cases the board 
of aldermen, in others the common council. The judicial 
department consists of a number of judges, usually elected 
by the voters, but sometimes appointed by the state. 

389. Recent Changes. When we come to examine the or- 
ganization and powers of these departments in more detail, 
we shall find that the executive and the legislative depart- 
ments differ considerably in different cities according as the 
city charter has or has not been recently revised. There 
has been, we shall find, a tendency toward centralization 
of power in the hands of a single executive authority — the 
mayor — with a corresponding curtailment of the powers of 
the legislature. In other words, city government, at least 
in its executive department, is coming to resemble the na- 
tional rather than the state government. 

390. The Executive Department: Usual Form. In cities 
whose governments have not been recently reorganized — and 
that means in most of our cities — the executive department is 
organized on a plan very similar to that prevailing in the 
state governments. There is a chief executive, the mayor, 
chosen by popular vote, usually for two or four years. Then 
there is a number of other executive officials, or boards, or 
both, some of them chosen by the people, some possibly 
appointed by the council or even by some state authority, 
over whom the mayor is in general unable to exercise any 



MUNICIPAL GOVERNMENT 297 

control. He usually has a somewhat limited power of ap- 
pointment and removal. Like the state governor, he owes 
his chief influence to his power of vetoing the acts of the 
legislature; though his veto, like the governor's, may of 
course be overridden by a sufficient majority. 

391. In the Centralized City Government the position of 
the mayor is very different. He is the real executive head 
of the city and is held strictly responsible for the administra- 
tion of all its affairs. In the_ extreme centralized type, the 
people elect almost no executive officials except the mayor. 
Under the Brooklyn charter of 1882, which was the first 
charter of this kind, the people elected besides the mayor, 
only the comptroller and the auditor. All the other chief 
administrative officers were appointed by the mayor without 
confirmation by the common council. In most of the city 
governments that have been recently reorganized the example 
of Brooklyn has been followed to a greater or less extent, and 
the principle of concentrated responsibility has been more 
or less fully adopted. Not only have the mayors been given 
large powers of appointment and removal, but they have in 
some cases been made members, together with the chief 
financial officers of the corporation, of a board of estimate, 
which calculates the amount to be raised for various pur- 
poses by taxation and then transmits its estimates to the city 
council, which may approve them or cut them down but 
cannot increase a single item. 

392. Administrative Departments. Along with the move- 
ment toward centralization of power has gone an attempt at 
better classification and organization of the great adminis- 
trative departments, which are so important in city govern- 
ment. Under the decentralized form of city government 



298 CIVIL GOVERNMENT 

there is usually a great number of these departments, the 
officials of which are chosen in a variety of ways, and which 
perform their functions for the most part independently of 
each other. In general it has been found that this practice 
not only makes it impossible to secure unity of administra- 
tion; it also increases the temptation to " log-rolling," at 
least, if not to something worse. Moreover, in cities of this 
type, the general tendency has been to trust executive work 
to boards or commissions rather than to individuals, with 
a resulting division of responsibility and lack of efficiency. 
Consequently, in the cities that have recently remodelled 
their governments, the number of departments has been 
reduced by abolishing some and by consolidating others, 
whose functions were allied, into one great department with 
a number of subordinate bureaus. Thus we find a depart- 
ment of public works with such bureaus as those of streets, 
street cleaning, engineering, and water supply. The heads 
of these great departments are called commissioners and are 
appointed by the mayor, who holds them to strict accounta- 
bility for the administration of their departments. They in 
turn appoint the heads of bureaus whom they hold respon- 
sible to themselves, and thus the principle of definite re- 
sponsibility permeates the whole system. Under the cen- 
tralized system the management of the departments is en- 
trusted usually to a single head; but in a few cases where it 
is felt that deliberation is required, the work is entrusted to 
a board or commission, which then appoints a chief or super- 
intendent to execute the plans it adopts. 

393. The City Legislature. Where the legislature consists 
of two houses, the members of the lower house are usually 
elected by wards, those of the upper by divisions larger than 



MUNICIPAL GOVERNMENT 299 

wards or sometimes by general ticket. Where there is but 
one chamber, each ward usually sends a representative, 
though in a few cities election is by general ticket or by 
specially created election districts. The term is usually 
either two or four years. 

394. Its Powers. Since the city government is created by 
act of the state, its legislature of course possesses only such 
powers as are delegated by the state, and in exercising them 
it is subject always to interference on the part of the state. 
These powers are enumerated and defined in the charter 
or in the general or special act of incorporation by which 
the city becomes a city. They consist usually of the power 
to pass all such ordinances and by-laws as may be necessary 
for the comfort, convenience, or safety of the citizens; of 
the power to lay taxes for the support of the city govern- 
ment; of the power to borrow money for permanent im- 
provements, subject always to the limit of municipal indebt- 
edness fixed by the state and also subject often to the special 
consent of the voters; and of the power to grant franchises. 
It should be noted that not the whole legislative power of 
the city is given to the legislature. Besides the legislative 
power exercised negatively by the mayor through his veto, 
certain executive boards, such as the police and health 
boards, may make proclamation of necessary regulations, 
which possess thereupon the same force as ordinances passed 
by the councils. 

395. Recent Restrictions. In recent charters the powers 
of the legislative branch of city government have been greatly 
curtailed. We have already seen that the creation of boards 
of estimate has reduced its power in the matter of taxation 
until it has scarcely more than the power of revision. Mr. 



300 CIVIL GOVERNMENT 

Low has pointed out that in New York "that tendency" 
(viz., to restrict the powers of the city legislatures) "has 
been acted upon to so great an extent as to deprive the com- 
mon council of every important function that it ever pos- 
sessed, except the single power to grant public franchises." 
The same writer declares this problem of properly organiz- 
ing the legislative powers of the municipality to be " the great 
unsolved organic problem in connection with municipal gov- 
ernment in the United States." 

396. The Judicial Department. The city courts are merely 
a part of the judicial system of the state. Besides the police 
justices, usually elected by the people for short terms, there 
are in the larger places, several superior judges chosen for 
longer terms. The city courts have jurisdiction of all cases 
arising under city ordinances as well as of minor criminal 
and civil suits in which state law is involved. Appeal to 
a higher court is possible in most cases. 

397. The Village. The characteristic features of the in- 
corporated village or borough governments can be noted 
briefly. A board of trustees presided over by a mayor, pres- 
ident, or chief burgess, is given extensive power of making 
by-laws and considerable power of taxation for local im- 
provements as well as for local administration. The other 
ofhcers are the treasurer, clerk, collector, street commissioner, 
and sometimes overseers of the poor. In general the vil- 
lage or borough possesses a somewhat smaller measure of 
independence than does the city. 

398. Some Problems of City Government. As we saw at 
the beginning of the chapter, the conditions under which 
our cities have grown up have been such that the problems 
presented to the citizens for solution have been, and still 



MUNICIPAL GOVERNMENT 301 

are, numerous and difficult. It is worth while to examine 
some of these a little more closely. 

399. Finances: Income. One of the most thorough tests 
of the efficiency of a city government is its administration 
of its finances. It was the wide-spread mismanagement of 
financial affairs, with extravagant expenditures and the ac- 
cumulation of enormous municipal debts, that first directed 
public attention to the shortcomings of municipal govern- 
ment and subjected it to the searching criticism of recent 
years. A city derives its income from a variety of sources. 
Its chief reliance is upon the general property tax levied upon 
all real estate and, so far as it is discoverable, upon all per- 
sonal property. Besides this general tax very considerable 
sums are derived from special assessments upon property 
whose value is enhanced by public improvements made in 
the neighborhood. Where the city furnishes water, gas, 
electricity, or any similar service, a part of its income is de- 
rived from the charges made for such service; where such 
businesses are in the hands of private corporations, the city 
still, as a usual thing, derives an income from them through 
the sums paid for the franchises. In addition to these 
sources of income there are the licenses issued for the carry- 
ing on of various kinds of business, and fines paid as a pen- 
alty for violation of law. 

400. Expenditures. The money thus obtained is expended 
in a great variety of ways. The officers who administer the 
city's affairs must usually be paid for their services, so that a 
part of it is expended for salaries. Large sums are spent 
for police and fire protection, for lighting the city, and for the 
care of its streets. The largest single item of expense is 
usually that for education; on the average about a sixth of 



302 CIVIL GOVERNMENT 

the total expenditure is devoted to the public schools. Where 
there is municipal ownership of water- works, lighting plants, 
etc., the expenses of operating these industries are a part of 
the city's expenditure. Finally, no insignificant item is the 
interest on the municipal debt. 

401. Municipal Debts. While the existence of municipal 
indebtedness is not necessarily an evil nor an unfailing sign 
of extravagance or corruption on the part of city authorities, 
still it must be admitted that the rapid increase of city debts 
has at times seriously menaced the prosperity of many of 
our cities. Unquestionably there has been no small amount 
of extravagance and corruption. Most municipal indebted- 
ness has, however, been incurred in the attempt on the part 
of our rapidly growing cities to build up what one writer has 
called their " permanent plant" — water- works, pavements, 
sewers, schools, municipal buildings, public improvements of 
all kinds. Such undertakings have often been unwisely be- 
gun and wastefully managed, and the resulting evils of over- 
taxation and excessive indebtedness have brought about at- 
tempts on the part of the states to "curb the recklessness of 
city councils." Almost all the states have now limited the 
amount of indebtedness that a city may incur to a certain 
percentage (usually two to ten per cent) of the assessed 
value of the taxable property. 

402. Extension of Municipal Functions. Another prob- 
lem with which the cities find themselves more and more 
frequently confronted is the question of the extension of 
municipal functions. There is general agreement that it is 
the proper function of the city to pave and clean its streets, 
to furnish sewers, to provide schools and public parks; but 
the question often arises as to how much further the city's 



MUNICIPAL GOVERNMENT 303 

activity should extend. Should it undertake to furnish water, 
for example, or light, or street- car service ? If it is the func- 
tion of the city to protect the health of its citizens by proper 
sanitary arrangements, why should there not be also public 
baths and laundries? If it rightly provides public schools 
and libraries, why not municipal art galleries and free 
concerts? If public parks, why not playgrounds and 
gymnasiums ? 

403. Present Practice. The business of supplying water 
and, to a still greater extent, that of supplying gas, electricity, 
and street- car service, has until recently been left to private 
enterprise. In the case of the water-supply there has of 
late been a general tendency toward municipal ownership. 
More than half the water- works plants of the United States 
are now owned by cities, and of the large cities very few are 
dependent upon private companies. Of gas and electric 
light plants a much smaller proportion are municipal; while 
street railways are still almost entirely in the hands of private 
enterprise. Since the purity of the water supply is of such 
great importance to the health of the community, it is not 
surprising that the necessity for municipal ownership should 
have made itself most distinctly felt in that connection. 

404. Franchises. Where the furnishing of water, light, and 
transportation is still in the hands of private persons or cor- 
porations, the question of the granting of franchises becomes 
an important one. These industries require for their oper- 
ation the use of the city streets; and since the streets are 
public property, the privilege of using them for such pur- 
poses must be obtained from the city council, or, in some 
cases, from the state legislature, by means of a grant called 
.a franchise. There can be no question that the city coun- 



304 CIVIL GOVERNMENT 

cils have greatly abused this power of granting franchises, 
and the charge of corruption so often made against council- 
men has been in many cases only too true. A franchise of 
this nature is ordinarily very valuable and, as the city grows, 
becomes increasingly so; yet many of them have been given 
away, either through the ignorance or the indifference of 
councilmen, or more often through corruption, the votes of 
councilmen having been paid for in money or in stock of the 
company receiving the franchise. Cities are now attempting 
to control these evils by regulating the conditions under which 
franchises may be granted. Where such reforms have been, 
attempted it is usually required that the term of franchises 
be limited to fifteen or twenty years, that they be sold to the 
highest responsible bidder, and that a certain minimum per 
cent of the gross receipts from the business concerned be 
paid into the city treasury. 

405. Municipal Ownership. The question of the desira- 
bility of municipal ownership of these industries has been 
much discussed. In the case of the water supply municipal 
ownership has generally proved more satisfactory than pri- 
vate or corporate ownership. That it would do so in the 
case of the others is not proved. Opponents of municipal 
ownership urge against it the argument that it would in all 
likelihood be used by the political party in power for the 
furthering of its own ends. Places would be filled with 
political adherents regardless of their fitness, and the busi- 
ness would be badly and wastefully managed. Advocates 
of municipal ownership reply that extravagance and corrup- 
tion under that system could not possibly be greater than 
that which now prevails in the granting of franchises, 
and that such extensions of municipal activity are the best 



MUNICIPAL GOVERNMENT 305 

means of awakening the interest and public spirit of the 
citizens. 

406. Causes of Municipal Mismanagement: Defective 
Organization. Various causes have been assigned for the 
generally admitted imperfections of city government. As 
we saw in the earlier part of this chapter, they have been 
partly due to what have been called " mechanical defects in 
the structure of municipal governments." Our city govern- 
ments have apparently been constructed on a wrong theory 
— the theory that cities are states in miniature. The prin- 
ciple of division of power, which works very well in the 
state and national governments and in the rural districts, 
does not seem to be applicable to the cities. There is need 
of some method of fixing and enforcing responsibility. We 
have seen that some of our cities have met the difficulty with 
a considerable degree of success by concentrating power in 
the hands of the mayor; but this does not completely solve 
the problem of the organization of municipal government. 
The question of what shall be done with the city council 
remains. Up to the present, attempts to "reform" it have 
consisted principally of measures depriving it of its powers 
or placing limitations upon its exercise of them. Will this 
process be continued until the city council disappears alto- 
gether, or will some method be found of fixing responsibility 
upon the members of the legislature as well as upon the 
executive ? 

407. Influence 0} State and National Politics. Another fre- 
quently mentioned cause of bad city government is the car- 
rying over of state and national political issues into city 
affairs. Rarely, if ever, have the questions confronting the 
voter in municipal elections anything whatever to do with 



306 CIVIL GOVERNMENT 

party differences; yet they are at present, with occasional 
marked exceptions, regularly decided in accordance with 
party affiliations. This state of affairs is in part due to the 
wide-spread influence of the "spoils system," which looks 
upon public office as the legitimate reward of party service 
and which keeps the party machinery "oiled and greased 
and always working at high pressure;" in part to the fact 
that the regular party organizations are almost the only 
permanent political organizations in the cities. Occasion- 
ally, particularly after exposure of the operations of some 
corrupt ring or dishonest official, our cities have been seized 
with what the newspapers term a "spasm of reform." In- 
dependent movements are organized, independent candidates 
are nominated and perhaps elected, but such movements 
have generally been only temporary. They are usually too 
poorly organized to stand long before the assaults of the 
regular party organizations. The adoption of civil service 
reform methods, which has been brought about within re- 
cent years in some of our cities, furnishes a means of com- 
bating the "spoils system;" and efforts have also been made 
with some degree of success to remove the city from the 
influence of state and national politics by holding municipal 
elections at such times that they will not coincide with state 
and national elections. 

408. Lack o) Civic Spirit. The fundamental cause of mu- 
nicipal mismanagement, however, as of all political misman- 
agement, is to be found in what has been called "the lack of 
civic spirit" on the part of the citizens. The explanation 
of this defect is often looked for in the existence in our cities 
of large foreign populations, to whom our political ideals 
and methods are strange, and who can fit themselves but 



MUNICIPAL GOVERNMENT 307 

slowly into our political system. Doubtless our foreign born 
population increases the difficulties of the problem some- 
what; but our shortcomings in this respect cannot be justly 
charged to them nor even to the ignorant and vicious classes. 
They are primarily due to the indifference of our so called 
"good" citizens or to their absorption in other affairs. Mr. 
Bryce says in this connection: "We find able citizens ab- 
sorbed in their private business, cultivated citizens unusually 
sensitive to the vulgarities of practical politics, and both 
sets therefore unwilling to sacrifice their time and tastes and 
comfort in the struggle with sordid wirepullers and noisy 
demagogues." So long as this condition is general we need 
hope for no very marked improvement in municipal govern- 
ment. 

409. Reform Influences. Our cities are, however, making 
progress toward better things. Systematic efforts to arouse 
public interest in municipal affairs are now made in nearly 
all our great cities through permanent organizations, such 
as good government clubs and municipal reform leagues. 
Through the patient and persistent efforts of such organiza- 
tions the number of those who are awake to their civic duties 
daily increases. "In the increase of that number, . . . 
rather than in any changes of mechanism, lies the ultimate 
hope for the reform of city governments." 

Library References. — Ashley, Chap. XXI; Macy, Chap. XII; Fiske, 
Chap. V; Bryce, Vol. I, Chaps. L-LII; Wilson, §§ 1029-1036; Dole, Chap. 
XIII; Wilcox, Chaps. III-IV; Zueblin, American Political Progress ; Baker, 
Municipal Engineering and Sanitation. 



308 CIVIL GOVERNMENT 

QUESTIONS ON THE TEXT 

301. Explain why the problems of local government are more 
difficult in a large city than in a village. 

302. Define city charter. Mention three topics treated of in 
a city charter. 

303. What is the name of the legislative body of a city? What 
are its enactments called? Mention four important matters on 
which it may legislate. 

304. Why is concentration of power in the hands of the mayor 
believed to give better government ? 

305. What are the advantages of choosing councilmen by elec- 
tion at large or on a general ticket ? Is it advisable to choose part 
of the council on a general ticket and part by wards? Why? 

306. What is an incorporated village? A city? State the 
object of these corporations and show wherein the city differs from 
the village. 

307. State two advantages that may result to a village from 
incorporation. Mention a possible disadvantage. 

308. Mention the legislative body of a village. Give the chief 
executive officer and his duties. 

309. To whom do the streets belong? Has anyone a right to 
grant perpetual franchises upon them? 

310. What is a franchise tax? Give two reasons for or against 
the enactment of a franchise tax law. 

311. Discuss the desirability of municipal ownership of water- 
works; of lighting plants; of street railways. 

312. Is it wise in the interests of good local government to unite 
the choice of city, county, state, and national officers in one elec- 
tion? Why? 

313. Show why the influence of political parties upon the man- 
agement of city affairs has not been good. Is independence of 
parties possible? Why are cities rather than counties and states 
subject to "ring" rule? 

314. Give arguments for or against state control of the police 
departments of large cities. 

315. How may municipal government be improved ? Illustrate 
your answer by an example. How are you going to help improve 
it? 



CHAPTER XXI 

AMERICAN POLITICS AND POLITICAL PARTIES 

410. Importance of Parties. In the study of our political 
system as described in the foregoing pages we have several 
times touched upon a phenomenon which must now be ex- 
amined more closely if we wish to understand how our gov- 
ernment actually does its work. This is the phenomenon of 
political parties. With us government is unquestionably 
party government. It would be difficult indeed to overesti- 
mate the importance of the role played by party in this coun- 
try. Everywhere and always the wishes of the people, so 
far as they find expression in the government at all, do so 
through some organized political party. As a recent writer 
has said: "There is scarcely a law made, an official chosen, 
or a policy discussed, concerning which the political party 
does not exercise the predominating influence. " To the 
youth training for citizenship, therefore, it cannot but be a 
matter of some importance to know something of the history 
of political parties in the United States, something of the 
policies which the various parties have advocated, and par- 
ticularly something of the methods by which the work of 
parties is accomplished. 

411. Earliest Parties in the United States. It is unneces- 
sary to our present purpose to inquire into the history of poli- 
tical parties in the United States before the constitutional 
convention of 1787. The debates of the convention and the 
discussion over the adoption and ratification of the constitu- 
tion revealed the most important of the issues upon which 

309 



310 CIVIL GOVERNMENT 

men were to divide for the first time in our history into two 
great political parties. The first question at issue between 
the two parties was the question of the acceptability of the 
constitution itself. We have already seen (§§ ioo, 106) that 
in the constitutional convention, as well as in the state con- 
ventions called to ratify the constitution, two opposing opin- 
ions were strongly held. One party, to which the name 
federalist soon came to be applied, contended urgently for 
a strong central government, those holding extreme views 
even cherishing, it is said, some hope of a monarchy. 1 The 
antifederalists, on the other hand, were opposed to the con- 
stitution, the extremists wishing at most for a mere league 
between the thirteen independent states, and even the more 
moderate ones deeply distrustful of the new instrument, and 
willing to ratify it only because they despaired of obtaining 
anything more satisfactory. 

412. Changes in Antifederalist Party. There was at 
first among the antifederalists, too little agreement to make 
them an effective political opponent. Almost their only 
point of agreement was their opposition to the constitution. 
Gradually, however, this opposition died away, and the 
party as a whole accepted the constitution unreservedly, 
merely insisting that the document should be so construed 
as to forbid any extension of the powers of the federal gov- 
ernment beyond those expressly granted. In other words, 
the party became a " strict construction " party. Gradually, 
too, the discordant elements became more united, until 
finally fear of the growing power of the central government 
and sympathy with the principles that had led to the es- 
tablishment of the French republic and its declaration of 

1 Johnston, American Politics, p. 15. 



AMERICAN POLITICS 3 11 

war against England, consolidated them into a political 
party with a definite body of opinion and a positive name 
of its own. They called themselves republicans or demo- 
cratic-republicans, because of their sympathy with the 
French republicans, and under the leadership of Jefferson 
soon became a power to be reckoned with. 

413. Policies. The federalists, as was just said, advo- 
cated first of all a strong central government; and, since a 
liberal construction of the provisions of the constitution was 
in general favorable to a wide extension of the powers of the 
federal government, the party was from the beginning a 
"loose or liberal construction" party. It was quite in ac- 
cord with this policy of extending the powers of the federal 
government that the federalists should advocate, as they 
did, the imposition of a tariff for the protection of manufac- 
tures, the expenditure of public money by the general gov- 
ernment on far-reaching internal improvements, and the 
establishment of a national bank. To all of these policies 
the democratic-republicans were strongly — at times bit- 
terly — opposed. The party was the defender of the pre- 
rogatives of the states as against the federal government, in 
general the assertor of democratic principles, with an abid- 
ing faith in the ability of the people to manage their own 
affairs if let alone. To all extensions of federal power it 
was, in theory at least, unalterably opposed. Neither party, 
however, found itself able under stress of circumstances to 
hold unswervingly to its avowed principles. We shall find 
the federalists in the Hartford convention advocating ex- 
treme strict construction principles; while the democratic- 
republicans, on the other hand, once they had become the 
party in power, found themselves more than once compelled, 



3*2 CIVIL GOVERNMENT 

in order to adminster the government successfully, to sanc- 
tion the widest extensions of federal authority. The policy 
advocated by the federalist party made it naturally the party 
of the mercantile and manufacturing classes and attracted 
in general the more conservative element of the population, 
who had been shocked by the excesses of the French revo- 
lution, and who attributed these excesses to the influence of 
democratic theories. It found its strongest support in New 
England and the middle states, where the commercial interest 
centred. The democratic-republican party was the party of 
the masses, the great agricultural portion of the community, 
and of the south. 

414. The Federalist Supremacy. When the government 
was first organized under the new constitution, parties were 
in a state of considerable confusion. The federalists, to be 
sure, were already fairly well organized and possessed of a 
more or less definitely formulated policy ; but the antif ederal- 
ists had not yet learned to act together. The more moderate 
members of the party, if it may be called a party at all, at 
first voted generally with the federalists; and thus it came 
about that the federalists, though they were probably nu- 
merically the weaker party, came first into power. Wash- 
ington, who had been elected by both parties and who was 
not a member of either, tried to maintain the balance as 
evenly as possible between the two parties, but was thrown, 
partly through Hamilton's* influence but more through the 
exigencies of administration, upon the side of the federalists. 
Thus the federalists at first had the upper hand and were 
able to pass a number of important measures before their 
defeat in 1800 deprived them permanently of control of the 
government. 



AMERICAN POLITICS 3*^3 

415. The Public Debt. Most important among these were 
the measures recommended by Hamilton in his famous report 
on the settlement of the public debt. Hamilton's recommen- 
dations were three in number: first, that the foreign debt of 
the confederacy should be paid in full according to the terms 
of the original contracts; second, that the "domestic debt" 
(that owed to citizens of the United States) should also be 
paid at par; and third, that certain portions of the debts of 
the several states should be assumed and paid by the United 
States as a part of its own debt. With the first recommenda- 
tion all agreed, and it was passed without dissent. The 
second aroused much opposition, but Hamilton after long 
debate succeeded in convincing the majority that the credit 
of the new government depended upon the payment of the 
certificates at their full face value, and this recommendation 
also was finally passed. The third recommendation in- 
volved the question of the powers of the federal government, 
and the antifederalists were unitedly opposed to it. Before 
the matter was settled the arrival of seven new members 
from North Carolina, which had come into the union in No- 
vember, 1789, so strengthened the antifederalists that the 
recommendation was defeated by a majority of two. It 
was only by means of a bargain with Jefferson that Hamilton 
finally secured the passage of a measure similar to but not 
exactly like that outlined in his original report. It was 
agreed that, in return for the passage of this measure, 
another should be passed locating the national capital per- 
manently upon the Potomac after it had remained in Phila- 
delphia for ten years. 

416. Among other Important Measures passed through 
Hamilton's influence in spite of strenuous opposition were 



314 CIVIL GOVERNMENT 

one providing for the establishment of a United States bank 
and one for raising revenue by means of an internal revenue 
tax or excise. The bill for establishing a national bank 
raised again the question of the powers of the federal govern- 
ment and met with the opposition which that question al- 
ways aroused. Nevertheless the bill passed both houses of 
the legislature, and received the president's signature after 
very careful deliberation, in the course of which he called 
for the written opinions of the members of his cabinet. The 
arguments then presented by Hamilton in favor of the es- 
tablishment of the bank and by Jefferson against it have 
hardly been added to or improved upon since, although this 
question of a United States bank remained a bone of con- 
tention between the parties for half a century. Under Ham- 
ilton's leadership also was established, for the support of 
the general government, a system of indirect taxation which 
was destined to remain long in use. The two methods of 
raising money down to the present day (1904) for the sup- 
port of the federal government — the tariff and the internal 
revenue tax — were initiated by him. 

417. Decline of Federalists and Rise of Democratic-Re- 
publicans. We have seen that the contending factions in- 
cluded at first under the general term " antif ederalists " 
soon coalesced to form the much better organized and much 
more formidable democratic-republican party. For this re- 
sult the federalists themselves were in large part responsible. 
It soon became evident that the federalist party as a whole 
entertained views in regard to the powers of the central gov- 
ernment which public opinion was not yet willing to sanction. 
It trampled too recklessly on the sentiment of local and per- 
sonal independence, and was too willing to subordinate and 



AMERICAN POLITICS 3*5 

even to sacrifice the ever jealously guarded prerogatives of 
the states to the interests of the general government. The 
inevitable result was to alienate the more moderate section 
of the antifederalists, who had at first voted with their 
natural opponents. After Washington's retirement from 
ofifrce the federalists succeeded in electing his successor, 
Adams; but during his administration their injudicious ex- 
ercise of power in the passage of the alien and sedition acts 
sealed their fate. In the presidential election of 1800 the 
democratic-republicans were successful, and the federal- 
ists never again came into power, though they remained a 
strong minority for some time after that election. 

418. The Hartford Convention. It was the famous Hart- 
ford convention that gave the party its death-blow. This 
assembly of delegates from the New England states, the 
stronghold of the federalists, was called in 1814 for the 
purpose of conferring upon the subject of the grievances of 
these states arising out of the conduct of the war by the ad- 
ministration. The convention seems to have been entirely 
legitimate in its object; but the secrecy of its proceedings gave 
rise to a suspicion that its designs were treasonable, and it 
proved the political ruin of the party with which it originated. 
With the close of the war the federalist party disappears. 

419. A Period of Transition. For a short time party 
spirit declined, and in 1820 Monroe was reelected by every 
vote save one in the electoral college. It would hardly be 
accurate, however, to say that the democratic-republicans 
held the field. If the federalists toward the end of their 
career, moved by sectional interests, had adopted strict con- 
struction principles, it was no less true that the democratic- 
republicans had sanctioned a more and more liberal inter- 



316 CIVIL GOVERNMENT 

pretation of the constitution; so that by 1820 the attitude of 
the party on this question had changed completely. It was 
not so much an "era of good feeling," as this second ad- 
ministration of Monroe is frequently called, as it was an era 
of transition, in which old party lines had been to a great 
extent obliterated, and new ones had not yet been clearly 
drawn. Indeed, it was not an era of good feeling at all; 
but, so far, at least, as the political leaders were concerned, 
an era of very ill feeling, in which party divisions were based 
on personal animosities rather than principles. 

420. Rise of Democrats and National Republicans. It was 
under the influence of the personal hostility of two great 
leaders, Clay and Jackson, that two distinct political parties 
were again formed about 1830. One of these, known 
henceforth as the democratic party, reasserted the principles 
of the JefTersonian republicans. It demanded strict con- 
struction of the constitution, defended states' rights, and 
declared hostility to protection. The other party, called at 
first national republicans, later whigs, was formed out of 
those elements of the democratic-republican party that had 
adopted loose construction principles. To a considerable 
extent they maintained the traditions of the federalists as 
the democrats did those of the democratic-republicans. 
They believed, among other things, in internal improvements 
and protection of home industries by means of the tariff. 

421. The Slavery Question. Meantime another question 
was forcing itself upon public attention — the question of the 
extension of slavery west of the Missouri. At first both 
parties tried to keep it out of politics, but in vain. In the 
end, they were obliged to adapt their policies to it. By 
1852 the democratic party had become distinctly the pro- 



AMERICAN POLITICS 317 

slavery party; but the whigs were still attempting a policy 
of compromise — a policy which soon proved fatal to them. 
In the presidential election of 1852 they suffered a crushing 
defeat, and two years later the remnant of the party finally 
broke to pieces over the bill for organizing Kansas as a 
territory. 

422. Rise of Republican Party. The democrats were not 
left long without an opponent, however. Very promptly a 
new party arose, which united the antislavery forces under 
the name of republicans. In the presidential election of i860 
dissensions within the democratic ranks gave the victory to 
the new party, and Lincoln was elected to the presidency. 
From that time until the present, with the exception of the 
two Cleveland administrations (1885-1889, 1893-1897), the 
republicans have retained control of the presidency. 

423. Parties since 1880. The issues growing out of the 
civil war may be said to have been settled by 1875 or 1880. 
Since then the two great parties have remained the same 
in name. New issues have arisen, though no great all- 
absorbing question like that of slavery has centred public 
attention upon itself to the exclusion of everything else. 
Among the later questions upon which the parties have di- 
vided may be mentioned the tariff question, which was most 
prominent from 1880 to 1892; the question of the free 
coinage of silver, which held the foremost place from 1892 
to 1898; and the questions growing out of the Spanish- 
American war, which have been uppermost since 1898. 

424. The Work of Parties. Such is, in brief outline, the 
history of political parties in the United States. Let us now 
see something of the way in which parties have organized 
themselves for the work that they have to do. The politi- 



318 CIVIL GOVERNMENT 

cal party performs three functions. It is its business (i) to 
formulate the political principles of its members and to out- 
line the policies which they wish to have carried out; (2) to 
provide the machinery by which its members may nominate 
candidates representative of their opinions; and (3) to or- 
ganize the voters of the party in such a way that its candi- 
dates may, if possible, be elected. At the present time the 
first two of these purposes are effected through the agency 
of the party convention, the last through the permanent 
committee. 

425. History of the Convention: the Congressional Cau- 
cus. The party convention has grown up gradually in the 
course of our party history. For the first two presidential 
elections there was no need for nominations, since all parties 
desired the election of Washington. In 1796 also, though 
there were two candidates, each was the unanimous choice 
of his own party, and it did not occur to either party to make 
a formal nomination. The first need for a nomination arose 
in 1800. The federalists had already agreed upon Adams 
and the democratic-republicans upon Jefferson as their re- 
spective candidates for the presidency, but the latter party 
was in doubt about its candidate for vice-president. Ac- 
cordingly a meeting of the republican members of congress 
was called and nominated Aaron Burr. The meeting was 
notable in two respects: it was the first congressional caucus 
ever held, and it made the first formal party nomination. 
For the next four elections the candidates were regularly 
nominated by congressional caucuses; but this method of 
nomination, which had aroused opposition from the first on 
the ground that it deprived the people of the right to choose 
their own candidates, met with less and less approval as 



AMERICAN POLITICS 319 

time went on. In the election of 1824, when the demo- 
cratic-republican party had the political field practically to 
itself, the nominee of the congressional caucus was defeated, 
and no more congressional caucuses were held. 

426. Various Methods of Nomination. For a time there 
was no uniform method of making nominations, candidates 
being recommended by state legislatures and by popular 
assemblies held somewhat at random. In 1832 one of these 
assemblies, after indorsing the nominations previously made 
by the whigs, formulated a series of ten resolutions, which 
is notable as the first political "platform" ever adopted by 
a nominating convention. By 1840 these somewhat hap- 
hazard assemblies had become regular national conventions 
made up of delegates from nearly all of the states. In that 
year such conventions were held by both democrats and 
whigs, and the example has since been invariably followed 
by all political parties. 

427. The Convention Perfected. In the years that have 
followed since its adoption the national convention has grad- 
ually perfected its form. To quote Mr. Bryce: "The early 
conventions were to a large extent mass meetings. The 
later and present ones are regularly constituted representa- 
tive bodies, composed exclusively of delegates, each of whom 
has been duly elected at a party meeting in his own state, 
and brings with him his credentials." 1 

428. The Convention : Its Organization and Work. At the 
present time the national convention of each of the parties 
meets in the summer preceding a presidential election. Each 
state sends twice as many delegates as it has senators and 
representatives in the national legislature. Occasionally a 

1 Bryce, Vol. II, p. 178. 



320 CIVIL GOVERNMENT 

state's whole delegation is chosen by the state convention; 
but generally the state convention chooses four delegates 
(corresponding to the two senators), while conventions in 
the congressional districts choose two each. There are four 
regular convention committees — on organization, on cre- 
dentials, on rules, and on resolutions. Usually, about two 
days are consumed in the preliminary work of organization. 
About the third day the committee on resolutions reports the 
"platform" — a formal declaration of the principles of the 
party and a statement of the issues for which it stands in 
the campaign. This may be adopted with little or no opposi- 
tion, or it may call forth much debate and may be accepted 
only after considerable modification. The platform once 
accepted, nominations for candidates for president are in 
order, and these are made by the state delegations as the roll 
of the states is called. After a candidate for president has 
been selected a candidate for vice-president is chosen, and 
the work of the convention is done. 

429. Party Differences. The conventions of the two great 
parties employ practically the same methods. They differ, 
however, in two respects. In the democratic national con- 
vention the vote is by states, i.e., the entire state delegation 
votes as the majority may decide, although more than one 
candidate may be voted for if the majority agrees to it. The 
democrats also require a two- thirds vote for nomination. In 
the republican convention, on the other hand, each delegate 
may vote regardless of the wishes of the majority of the 
delegates from his state; and a majority vote of the delegates 
constitutes a nomination. 

430. State and Local Conventions. The convention sys- 
tem has been universally adopted also in state and local 



AMERICAN POLITICS 3 21 

politics; and practically all nominations for important elec- 
tive offices, except those for -president and vice-president, are 
made in the state and local conventions. The delegates to 
the state conventions are chosen by the local conventions; 
while the delegates to the local conventions — city, county, 
and even congressional district conventions — are chosen in 
the primaries. The procedure in these minor conventions 
is modelled closely on that of the national convention. 

431. The Committees: National Committee. When once 
the nominations are made, the conduct of the campaign is 
entrusted by each party to a series of permanent committees 
— one for the country at large and one for each state, county, 
city, town, and ward — which together constitute what is 
often spoken of as the "machine." The national com- 
mittee is composed of one member from each state selected 
either at the national convention, usually after the wishes 
of the nominees have been consulted, or at the state conven- 
tions, which are held just before each national convention. 
This committee fixes upon the place and time for holding 
the national convention and issues the call for that meeting. 
It also collects and disburses the money necessary in con- 
ducting the campaign. Money for campaign purposes is 
obtained by contributions from interested members of the 
party. Part of it is handed over to the local committees and 
part retained by the national committee for the purpose of 
furnishing campaign literature and paying speakers to tour 
the country. 

432. Lower Committees. Since state and local elections 
occur much more frequently than national ones, the work 
of the "lower" committees is more nearly continuous. The 
state committee, made up of representatives from the coun- 



322 CIVIL GOVERNMENT 

ties, names the time and place for the state convention, 
oversees the local committees, and takes charge of state 
.and congressional elections. The "lowest" committees — 
county, city, town, and ward — are in many respects the 
most important in the whole system, since they are able to 
bring a personal influence to bear directly upon the voters. 
This they do not only at elections by seeing that as large a 
vote as possible is cast for the party candidates, but in the 
primaries, where they exert themselves to the utmost to 
secure the selection of such delegates to the "higher" con- 
vention as meet their approval. 

433. The Primary: Its Importance. If the student has 
followed the foregoing discussion of the convention and 
committee system, he must have become aware that the vi- 
tally important point in the whole system is the primary, as 
the mass meeting of the party voters in a definite locality 
is called. It is here that the whole political machine is set 
in motion. When once the voters in this primary assembly 
have chosen their delegates to the next higher convention, 
the matter is out of their hands; and if they have erred in 
this initial choice, if they have allowed the primary to be 
dominated by a corrupt "machine," there is no remedy. 
On election day the voter must either cast his ballot for the 
candidates who have been nominated in the regular way by 
their respective parties, or he must waste his vote altogether. 

434. Necessity of Organization. Under present political 
methods the success of our government, national and local, 
is dependent upon the nomination of satisfactory men for 
office; and the nominations, as we have already seen, must 
be controlled, if at all, through the primary. To this fact 
men of questionable political methods are keenly alive. 



AMERICAN POLITICS 323 

They know that unless they can control the primary then- 
occupation is gone; and they attempt, therefore, by a care- 
fully planned organization before the caucus is called, to 
secure the appointment of delegates representing their pe- 
culiar notions of government. If they are to be prevented 
from securing the adoption of their methods, men of higher 
political ideals must organize and control results. Too often 
such men not only fail to make preparation, but even stay 
away from the caucus. Those principles which secure con- 
trol of the caucus can easily control the rest of the political 
machinery, which may be so dangerous and yet is so indis- 
pensable in a representative form of government. No one 
who remains away from the caucus when he might attend, 
has any right to blame others for the results of his own 
negligence. One man at the caucus has more power in 
shaping the policy of his country than ten men at the polls on 
election day. 

435. The Necessity of Parties. The question may be 
asked: "What is the necessity for political parties? Could 
we not do as well without them?" A party may be gener- 
ally defined as a union of individuals holding the same gen- 
eral opinions upon the questions named in the constitution 
or platform of the organization and striving to carry these 
opinions into effect. This definition suggests some of the 
facts which make political parties a necessity. It suggests 
first that different men hold different opinions in regard to 
political affairs, as they do in regard to other things; and 
these different opinions find voice through the political party. 
Furthermore it suggests that men naturally desire to see their 
political beliefs embodied in the actual government by the 
nomination and election of representatives who hold identi- 



324 CIVIL GOVERNMENT 

cal or at least similar views; and this work of nomination 
and election is one that can in general be accomplished only- 
through the political party. 

436. The Duty of the Citizen. It is the plain duty of every 
American citizen to belong to some political party, to attend 
its primaries, and to take an active part in them. If the 
principles are not satisfactory and the policies need changing, 
then it is his duty to take an active part in changing the 
principles and policies. The primary is the only purely 
democratic meeting in state and national politics. There 
it is every man's privilege to express his views, and to form, 
in the interest of good government, factions that are feared 
by corrupt party leaders. If he wishes to do this success- 
fully, let him learn to debate. Let him learn to express him- 
self clearly and forcibly. Let him study the great speeches 
that have changed the destiny of mankind. Let him take 
an intelligent part in the affairs of his party, and the country 
will be safe. 

Library References. — Ashley, §§ 151-161, Chaps. VII-IX, XXIII, 
XXIX; Macy, Chaps. XLII-XLVI; Macy, First Lessons, Chap. XXVII; 
Fiske, pp. 240-241, 271-281; Hinsdale, p. 112; Bryce, Vol. I, Chap. XLVI, 
Vol. II, Parts III-V; lohnston, American Politics; Wilson, §§ 873-880; 
Montgomery; Dole, Chaps. XX-XXII; Lalor, Articles on Party Govern- 
ment in the United States, Nominating Conventions, Abuses in Politics, etc. 
McMaster; Schouler; Channing; Harper's Book of Facts. 



QUESTIONS ON THE TEXT 

316. What is meant by "strict constructionists"? Under what 
names have they been known at different times in our history? 
Who were their opponents, and what have they been called ? 

317. Of present day political parties, which represents the 
" strict constructionists"? Are their opponents still represented? 

318. What three recommendations did Hamilton make to the 



AMERICAN POLITICS 3 2 5 

first congress concerning the finances of the confederation? Dis- 
cuss the fairness of each. 

319. What was the origin of our present system of internal 
revenue? of our tariff? 

320. What great issues have played an important part in the 
political history of our country? 

321. Explain the term "rotation in office" and "tenure of 
office" as applied to government service. 

322. What is meant by the "spoils system"? When was it 
introduced? 

323. Give the successive steps in the process of nominating 
and electing (i) a candidate for the presidency; (2) a candidate 
for membership in the house of representatives. 

324. What is a party "platform"? 

325. Define caucus; convention; primary. 

326. Explain the importance of the caucus as a factor in a rep- 
resentative form of government. 

327. Mention two benefits and two evils due to the prominence 
of political parties in our system of government. 

328. Give arguments either to establish or to controvert the 
following: "Parties appear to be necessary in all free governments." 



CHAPTER XXII 

INTERNATIONAL LAW 

437. International Law has been denned as "the system 
of rules that civilized nations acknowledge to be obligatory 
as their common law for regulating their mutual rights and 
duties in peace and war." This body of law has come into 
existence within comparatively recent times. When Chris- 
tian states began to communicate with one another they soon 
realized that they each had certain rights and certain corre- 
sponding obligations. Moreover they soon recognized that 
as nations have a common nature and a similar end to ful- 
fil, there is an equality of rights between them, and that by 
observing the common rules growing out of the principle 
involved in the golden rule they promote the interest and 
advantage of all. 

438. The Origin of International Law has already been 
intimated. It starts with intercourse, which begins when a 
state has entered into official relations with other states. It 
is not enough for an individual to land at a foreign port 
with a cargo of goods; that does not constitute intercourse 
in the legal sense. It is only when nations have entered into 
official commercial or political relations, usually by treaty, 
followed by an exchange of ministers, that true intercourse 
is established. With this intercourse comes a recognition 
of mutual rights and obligations, and certain rules are ob- 
served in the relations between states. As nations advance 
in civilization they tacitly or by formal agreement renounce 

326 



INTERNATIONAL LAW 3 2 7 

certain barbarous practices and thus add a number of new 
rules to the body of international law. Most of the rules 
observed by civilized nations can be traced to one of two 
sources. They are either the outcome of treaties by which 
"states acting in pairs or groups have agreed to be bound 
by certain principles in their relations with each other," or 
they have found their way into the law books as the 
result of certain formal customs growing out of international 
action. 

439. Compared with Municipal Law. When this branch 
of law is compared with the ordinary law governing the 
individual in his relations to the state or its subdivisions, 
certain differences appear (Chapter XXIII). One note- 
worthy difference between them is the lack of precision and 
the comparative uncertainty of international law. "There is 
no authority set above the nations whose command it is " and 
its enforcement, therefore, depends largely upon the moral 
sentiment of the states that have consented to it. It is true 
that it is sometimes confirmed, and violations of it are pun- 
ished by municipal laws, as in the United States; and there 
always remains the last means of securing its observance, 
namely, war. These methods, however, are inadequate and 
unsatisfactory as compared with the means of enforcing mu- 
nicipal law. The legislatures of states are ever ready to make 
or to change a law governing the individual, but there is no 
similar body that can be importuned to make laws regulat- 
ing the relations of nations. When there is added to this 
the lack of a regular judicial system to pass upon violations 
of international law, its rules would appear to have no very 
strong claim upon the consideration of the civilized world; 
but the sentiment of justice, which exists in every human 



328 CIVIL GOVERNMENT 

breast alike, permeates nations also, and the spirit of fair 
play gives to the rules of international law an authority in 
some cases as powerful and far reaching as that of munici- 
pal law. 

440. Sovereignty. Before entering upon a consideration of 
some of the rights and obligations recognized by the law of 
nations we must return to our definition of sovereignty. In 
§ 30 we found that sovereignty is the supreme power by 
which a state is governed. A completely sovereign state is 
one that possesses the supreme power of governing itself in 
all its relations, internal or external. Such a state may estab- 
lish its own form of government; may make and enforce its own 
laws, impose taxes, and exercise the right of eminent domain; 
may support military and naval forces; may plant colonies, 
establish protectorates, and acquire new territory; may enter 
into relations with other nations; and may make war and 
peace. Such a state may also surrender its sovereign rights 
and be merged in another state, or it may surrender a part 
of them and become a member of a federation or a confed- 
eration ; but if, by such surrender, it resigns the right to enter 
into relations with other nations and to make war, it thereby 
loses at least its external sovereignty, and the law of nations 
is no longer applicable to it. So long as a state retains the 
power of self-government in its relations with other states, it 
remains, in the view of international law, a sovereign state 
and may claim equality of rights with all other sovereign 
states. 

441. Recognition. When a community in the process 
of its development has attained "an independent exist- 
ence, performing the functions of a state and able to 
take upon itself state responsibilities, " it is entitled to 



INTERNATIONAL LAW 329 

recognition x as a state by other sovereign states. It remains, 
however, the prerogative of every nation to decide for itself 
whether an independent state be really established, and it 
may, therefore, recognize a community where the new order 
of things has not yet been fully accepted. On the other hand, 
recognition of a revolted colony or of a revolutionary party 
while armed strife is still in progress is evidence of hostility 
toward the mother country or the disturbed state, and may 
be made a ground for war. When a state has gained recog- 
nition from one or more sovereign states, it is entitled to enter 
into relations with the states thus recognizing it ; but it is not 
admitted into full membership in the society of nations until 
it has been recognized by all. 

442. Jurisdiction. Every state possesses territory over 
which and within which it exercises sovereign rights. Such 
exercise of a state's authority is called its jurisdiction. A 
state acquires territory in a variety of ways — "by discovery 
and possession; by purchase; by conquest; by treaty; and by 
prescription, or uninterrupted and exclusive possession dur- 
ing such a length of time as to make it unreasonable for 
another nation to set up a prior or an adverse title." The 
territory of a state includes (1) not only all the land but also 
all the waters (interior seas, lakes, and rivers) lying wholly 

1 In the matter of recognition, the United States has borne an important 
part. Before the American revolution there was no theory of recognition. 
The attitude taken by the United States towards France during the French 
revolution, in recognizing any government accepted by the French people, 
was a decided step in advance; but it was not until the doctrine of neutrality 
had been defined by Washington's cabinet, in the proclamation of 1794, 
that the doctrine of recognition could assume a definite form. The United 
States has always taken the high ground of international right, and it was 
this principle that actuated President Monroe in his proclamation in 1823 
recognizing the South American republics in their struggle for independ- 
ence. Paxson, F. L.: The Independence of the South American Republics. 



33° CIVIL GOVERNMENT 

within its boundaries; and (2) the sea to a distance of about 
three miles from the coast. Claims to exclusive jurisdiction 
over littoral seas or bays have usually been held invalid where 
such waters must be used by another nation in order to 
obtain access to its territory from the high seas, or where 
they are not somewhat narrowly enclosed by promontories 
belonging solely to the claimant. Where a river forms a 
boundary the jurisdiction of the state extends to the middle 
of the stream or to the middle of the channel that is best 
adapted for navigation. Over all its own citizens within 
these territorial limits and over all others who may be so- 
journing within its borders either as alien residents or as 
travellers, the state exercises jurisdiction. It exercises also 
a certain amount of exterritorial jurisdiction — e.g 0) by the 
rule of international law that makes inviolable the persons 
of diplomatic agents, together with their embassies, legations, 
residences, and all property belonging to them in their 
diplomatic capacity. 

443. Intercourse has already been defined. It is not some- 
thing that can be demanded as a right except in extreme 
cases, as when "one nation cannot do without the products 
of another, or must cross its borders to get at the rest of the 
world." On the other hand, when it is once granted, it can- 
not be terminated without a violation of international law. 
China or Japan could not refuse intercourse now without 
precipitating a war, since every nation having intercourse 
with those countries now regards it as a precious right to be 
safeguarded by every possible means. 

444. Diplomatic Agents. For the purpose of facilitating 
intercourse, nations have found it advisable to maintain in 
foreign countries agents to represent them and to further 



INTERNATIONAL LAW S3 1 

their interests. These agents belong either to the diplomatic 
service or to the consular service. Diplomatic agents are 
divided into four classes: (i) ambassadors, legates and nun- 
cios of the pope; (2) ministers plenipotentiary and envoys; 
(3) ministers resident; and (4) charges d'affaires. The first 
three classes, though they differ in rank, perform the same 
sort of service. It is their business to safeguard the general 
and more important interests of the nation that they repre- 
sent, and they not infrequently negotiate important treaties 
between their own countries and those to which they are 
accredited. In the United States these agents are appointed 
by the president with the advice and consent of the senate, 
and are under the general direction of the secretary of state. 
They reside at the capital of the country to which they are 
accredited or accompany the court of the sovereign. Partly 
as a mark of respect to the country which they represent, 
and partly in order that they may be independent of the 
foreign government and transact their business with the 
greatest convenience, they are accorded certain privileges. 
Not only are their persons inviolable so that no force can be. 
employed against them by public authority or by private 
persons without violating the rules of international law, but 
they are not even subject to the civil or criminal jurisdiction 
of the courts in the country where they reside. Their fam- 
ilies, including even the domestic servants, are likewise in- 
violable, and their goods are exempt from local jurisdiction. 
445. The Consular Service. Consular officers of the United 
States are divided into two classes, principal and subordi- 
nate. The principal officers are consuls-general, consuls, and 
commercial agents. Subordinate officers are vice-consuls- 
general, deputy consuls-general, vice-consuls, deputy consuls, 



332 CIVIL GOVERNMENT 

vice- commercial agents, deputy commercial agents, consular 
agents, and consular clerks. There are also interpreters, 
marshals of consular courts, and office clerks. Commercial 
agents are appointed directly by the president; all others are 
appointed by and with the advice and consent of the senate. 
It is their business to promote the commercial interests of 
their own state and to protect its citizens in foreign countries. 
These officers make monthly reports noting improvements 
in manufacturing and in agricultural processes, and give in- 
formation regarding good markets for our products and the 
best markets in which to purchase foreign products. Occa- 
sionally consular officers are charged with the performance 
of diplomatic as well as consular functions. 

446. TreatieSo The rights to which every state is entitled 
are subject to more or less modification. A nation may 
sacrifice many of its privileges either by wilful abuse of 
them or by a definite and voluntary abandonment of them. 
They are often greatly modified by treaty. A treaty is a 
compact made between two or more sovereign states by 
their properly recognized authorities or by their duly author- 
ized agents. Not all treaties are binding. They must con- 
form to certain rules prescribed by law. They must be 
made through the constituted authorities of the nations, or 
by " persons specially deputed by them for that purpose.'' 
Thus, if the power to make treaties be vested in the legisla- 
ture, a treaty made through the executive department would 
be null and void. Similarly, an agreement whereby the 
treaty- making power criminally and flagrantly sacrifices the 
interests of the nation has no binding force. In short, 
the same general rules apply to treaties that apply to ordi- 
nary contracts between individuals (Chapter XXIII). An 



INTERNATIONAL LAW 333 

agreement, therefore, made by force or fraud or entered into 
to commit an unlawful act is not recognized as having bind- 
ing force. Unless some other time is agreed upon, treaties 
go into effect when they are signed by an authorized agent. 
In case a treaty deals with a subject already the subject of 
earlier treaties, if there be no provision in the later treaty to 
the contrary, it is regarded either as explaining or as abro- 
gating the earlier ones. 

447. Pacific Methods of Redressing Injuries : Arbitration. 
Between nations, as between individuals, it is inevitable that 
disputes should arise and that injuries should be given and 
received. War is the ultimate means of securing redress for 
such injuries and should be resorted to only when all pacific 
methods of obtaining satisfaction have failed. Various peace- 
ful methods of settling disputes have been found. Among 
them the method of arbitration is of growing importance. 
When this is resorted to, the nations concerned in the dispute 
agree to submit their differences to an independent tribunal 
and to accept its decision. In 1899 an international peace 
conference was held at the Hague, which resulted in the 
establishment of a permanent international court of arbitra- 
tion. This court cannot, of course, compel nations to bring 
their differences before it for settlement; but it has exercised 
no little influence toward averting war. 

448. Other Methods. Besides arbitration a variety of 
other measures may be employed for obtaining satisfaction 
from an offending nation before recourse is had to war. 
Among these are embargo, reprisal, and retorsion. An em- 
bargo consists in detaining vessels in port either for political 
purposes or by way of reprisal. An embargo may be either 
civil or hostile. A nation lays a civil embargo by way of 



334 CIVIL GOVERNMENT 

self- protection (e.g., to protect its commercial vessels from 
capture); a hostile one by way of reprisal in order that an 
offending nation may be persuaded to do justice. Literally 
the word reprisal signifies simply retaking what is one's own, 
but in international law its meaning has been extended to 
include reimbursement for injuries sustained. Thus prop- 
erty may be seized and retained until redress is obtained; or 
sold, if the offending nation refuses to render satisfaction. 
Retorsion consists in the adoption by an injured nation of 
retaliatory measures toward the offender — " treating it or 
its subjects in similar circumstances according to the rule 
which it has set." 

449. War. When all peaceful methods of obtaining satis- 
faction have failed, there remains to every nation a last re- 
sort, namely, war. War is "an interruption of a state of 
peace for the purpose of attempting to procure good or pre- 
vent evil by force." A war is said to be just when it has a 
good cause and a proper and sufficient object. This is an- 
other way of saying that it may be waged (i) to defend any 
right which the state is bound to protect, e.g., to defend its 
territory from invasion or protect its citizens when they are 
maltreated by a foreign nation; (2) to redress a wrong, e.g., 
an insult to its flag, its ambassador, or its good name, or a 
violation of treaty rights; (3) to prevent apprehended injury, 
e.g., to prevent a disturbance of the balance of power or to 
right great and flagrant wrongs against religion or liberty, 
since these wrongs may affect all states. A formal declara- 
tion of war is no longer necessary. The state, however, 
which commences the struggle, must indicate in some way 
its changed feelings. This may be done by withdrawing its 
ambassador or by refusing intercourse. It must also give its 



INTERNATIONAL LAW 335 

own subjects and neutrals warning as to the changed rela- 
tions, in order that the former may not suffer in property or 
person, and that the latter may act accordingly. 

450. Effect on Subjects of the Enemy. The nations en- 
gaged in hostilities are called belligerents. If the subjects of 
one belligerent nation be residing or travelling in the territory 
of another, they are usually permitted to remain and to retain 
such property as they possess, provided they conform to the 
rules of conduct prescribed for them; but they may be re- 
quired to leave the country within a specified time. Under 
such circumstances they are given a reasonable time to effect 
the removal of their property. All trade between belligerents 
ceases, and any contracts or agreements entered into between 
subjects of the belligerent countries after the war breaks out 
are void. The law, however, allows the creditor to collect 
any debts which may have been contracted before the out- 
break of hostilities. 

451. Combatants and Non-Comb atants. A distinction is 
made on both land and sea between combatants and non- 
combatants. A combatant has been denned as a person 
" authorized by a government to wage war," i.e., any 
person "directly engaged in carrying on war, or concerned 
in the belligerent government, or present with its armies and 
assisting them." The passive inhabitants are non-combat- 
ants. In this class are included any persons who may be 
present with an army for the purpose of humanity or religion, 
such as surgeons, nurses, and chaplains. There is a differ- 
ence, of course, in the treatment accorded to these two 
classes. Combatants are liable to capture or even to death, 
if they refuse to yield; but they may be exchanged when 
captured for captives taken by their opponents, or they may 



336 CIVIL GOVERNMENT 

be given up for a ransom. While in captivity they are en- 
titled to maintenance in comfort at the expense of the state 
effecting their capture. Officers and others whose word can 
be relied upon may be released on their parole not to serve 
during the war, or until exchanged or ransomed. 

452. Their Property. All the property of combatants is 
liable to plunder and confiscation, as well as all public mon- 
eys, military stores, and buildings belonging to either belli- 
gerent. Property that does not contribute to the prosecution 
of the war should be exempt from violation. Non-combat- 
ants who remain quiet and take no part in the hostilities are 
not liable to molestation. Their property is not subject to 
capture except in extreme cases. Often it is taken at a fair 
value to satisfy the immediate needs of a hostile force. In 
rare cases it is taken without compensation, although even 
then in some cases receipts are given for the property. 

453. Cruel and Unfair Methods Forbidden. The law de- 
bars belligerents from using certain kinds of weapons or 
employing certain stratagems in maintaining hostilities. 
Any weapon which inflicts needless pain or produces a lin- 
gering death is prohibited, as is also the use of poison or of 
poisoned weapons. Nations are bound to maintain their 
plighted faith and are not allowed to importune or seduce 
the subjects of another to betray their country. If savage 
or semi-barbarous troops are employed by a civilized nation, 
it is required that they be kept under such control that they 
will conform to the ordinary rules of modern warfare. 

454. Truce. Belligerents may agree to a temporary sus- 
pension of hostilities at one or more places. Such an agree- 
ment is called a truce and becomes binding upon the parties 
thereto "from the time when they have agreed to its terms,' , 



INTERNATIONAL LAW 337 

and upon private citizens when they have had time to be 
informed of its existence. The existence of a truce does not 
prevent either party from making preparations for a renewal 
of the struggle. 

455. Siege. In conducting a siege the property and per- 
sons of non-combatants cannot be so readily safeguarded 
as in other cases. The law does not permit the bombard- 
ment of open, undefended towns. Usually the bombard- 
ment of a fortified or defended town is preceded by a notice. 
In that case the inhabitants may secure some protection for 
their lives and property. In case of bombardment, steps 
should be taken to spare so far as possible all buildings de- 
voted to religion, art, science and charity, and all hospitals, 
provided such buildings are not used for military purposes. 
Usually the greatest loss of life and property among non- 
combatants follows when a place has been taken by assault, 
as it is often difficult to determine when all resistance has 
ceased. All killing which takes place after resistance has 
been overcome is murder. The plunder of fallen towns by 
victorious troops is forbidden. 

456. Warfare with Barbarous Nations. In waging war 
with savages, a Christian state is sometimes tempted to go 
back to barbarous or savage methods of warfare. Even here, 
where the provocation may be great, the rules of land war- 
fare require the state to show good faith and humanity; to 
treat the prisoners well; to respect treaties and truces; in 
short, to deal with them as they would with a civilized state 
no matter how barbarous or inhuman their conduct may be. 

457. Captures on the Sea. The laws as to the capture of 
property on the sea differ considerably from those in use on 
land. All property of a belligerent nation or its subjects is 



33B CIVIL GOVERNMENT 

here looked upon as lawful prey, no distinction being made 
between the property of combatants and non-combatants. 
The precise rules governing its capture will be stated in con- 
nection with the rights and obligations of neutrals. Such 
property when captured is called a prize, and, when passed 
upon by a court, becomes the property of the captor. 

458. Privateering. It has been the custom in the past for 
each belligerent to grant letters of marque and reprisal to 
the owners of private vessels, authorizing them to seize the 
property of either belligerent on the sea. Such vessels are 
called privateers. At an international congress held at Paris 
in 1856 it was agreed by all the great nations except the 
United States and Spain that privateering should be abol- 
ished. The United States also was willing to abolish priva- 
teering on condition that all private property except contra- 
band of war should at all times be exempted from seizure on 
the high seas, but this condition was not accepted by the 
congress. At the outbreak of the Spanish- American war in 
1898 our government issued a decree forbidding privateering. 

459. Blockade. Usually a declaration of war is followed 
by an attempt to blockade the ports of the enemy. This too 
is designed to interfere with the commercial intercourse of 
nations. A blockade consists in " obstructing the passage 
into or from a place on either element, but is more especially 
applied to preventing communication by water." Any ves- 
sel attempting to pass a blockade is liable to capture. No 
blockade, however, is regarded as binding, unless there be 
present a sufficient force to render access dangerous. The 
name of paper blockade has been given to all so-called block- 
ades that do not satisfy this condition. Due notification 
must be given of a blockade, and vessels in port before a 



INTERNATIONAL LAW 339 

blockade is declared arc usually allowed to proceed to their 
destinations. 

460. Rights of Neutrals. Some of the most difficult of 
international questions have arisen in connection with at- 
tempts to define the rights of neutrals. A neutral state has 
been defined as "one which sustains the relations of amity to 
both the belligerent parties, or, negatively, is not an enemy; 
. . . one which sides with neither party in a war." A 
nation may preserve a strict neutrality or an imperfect neu- 
trality. In the former case it stands absolutely aloof, ren- 
dering no assistance to either. In the latter case, however, 
it may impartially allow both belligerents to transport troops 
across its frontiers or may furnish one, according to pre- 
vious engagement, a certain contingent of troops or vessels 
for prosecuting the war. Neutrality entitles nations to cer- 
tain privileges, such as the right "to preserve their territory 
inviolate," and "their sovereignty uninvaded." To this end 
they may demand that no battles be fought within their 
jurisdiction, or that no troops or supplies be carried through 
their territory. They may demand also that the same re- 
spect be shown their flag, their representatives, their prop- 
erty, their prerogatives, as was shown in times of peace. 

461. Property of Neutrals. The law governing the prop- 
erty of neutrals is most important. Their property, as in 
time of peace, is free from molestation wherever it may be 
found, unless it is contraband of war. It is difficult to define 
with exactness what is contraband, as the practice of nations 
has varied. It is usual to regard as contraband anything 
that "appertains immediately to the uses of war," such as 
firearms, bullets, and powder. Treaties are often made be- 
tween nations, specifying what articles will be treated by 



340 CIVIL GOVERNMENT 

them as contraband in case of war. It is usual, moreover, 
for belligerents to issue a list of articles which they intend 
to treat as contraband. A neutral cannot send these arti- 
cles into either country without wronging the other nation, 
and therefore they become liable to capture. If neutral goods 
be found on an enemy's ship they are still free from capture, 
although the ship itself is lawful prize. The law also pro- 
tects the goods of an enemy on a neutral vessel, always ex- 
cepting contraband of war. Both belligerents may exercise 
the right of search to enforce these rules. They may over- 
haul a neutral vessel, excepting a public vessel, examine her 
papers and her cargo, and on her refusal to submit to such 
examination, may take possession of her as a prize. 

462. The Duties of Neutrality are largely implied in the 
term " neutral." Neutrals must discharge toward both belli- 
gerents all those duties which humanity requires; must not 
permit one to transport troops across their territory, unless 
this privilege is accorded equally to the other; and must not 
loan money, supply troops, or otherwise assist in the prose- 
cution of the war. The law, however, makes a careful dis- 
tinction between the obligations resting upon the nation and 
upon the individual inhabitants, and does not regard it as a 
breach of neutrality for the individual to loan his money, 
sell military supplies, or even lend his assistance in person 
to the prosecution of the struggle. 

463. Intervention. In case a war is conducted in too 
cruel a manner or is wantonly and unnecessarily protracted, 
neutral nations may intervene. Intervention may, however, 
be resorted to on other grounds as well, as, for instance, "to 
preserve sovereign rights or interests, to maintain the balance 
of power, to prevent iniquitous revolutions, or to suppress 



INTERNATIONAL LAW 341 

crime of governments against their peoples." The neces- 
sity of preserving the balance of power has been the most 
common ground for interference with each other's affairs on 
the part of European nations. According to this principle 
no European nation must make or attempt to make acqui- 
sitions that are likely to prove dangerous to the independ- 
ence, influence, or territorial integrity of another. As yet 
the application of this theory has not been extended beyond 
the continent of Europe. Intervention may, of course, al- 
ways be resisted, either by the nation directly affected by it, 
or, under some conditions, by other nations. Thus the 
Monroe doctrine was an assertion of the right of the United 
States to resist foreign interference with American affairs, as 
well as of its right to intervene for the purpose of preventing 
such interference. Intervention is always interference and 
is justifiable only in extreme cases. As a rule, it is "illegal, 
impolitic, and inexcusable." 

464. Mediation. International controversies are sometimes 
settled by mediation on the part of neutral nations. Medi- 
ation is very similar to the attempts of private persons to 
reconcile two friends who have had a dispute. It may be 
sought by one or both of the parties concerned or it may be 
offered by the neutral nation. It is, of course, necessary that 
the nation which acts as mediator shall be friendly, impartial, 
and acceptable to both parties. Ordinarily it is not incum- 
bent upon the nations involved to accept an offer of media- 
tion, though the offer of a powerful nation may under some 
circumstances amount practically to compulsion. Neither is 
it ordinarily incumbent upon the parties to the controversy 
to accept the advice of the mediator. Nations have in gen- 
eral been careful not to offer mediation inopportunely, and 



342 CIVIL GOVERNMENT 

such offers must always be courteously received, even though 
they may not be accepted. 

Library References. — Ashley, §§ 625-627; Wilson, §§ 1216-1217; Wool- 

sey, International Law; Lawrence, International Law; Dole, Chaps. XLII- 
XLV; Lalor, Article on International Law; Standard Dictionary; Encyclo- 
pedia Americana, Article on Consular Service of the United States. 



QUESTIONS ON THE TEXT 

329. Define nation; sovereignty; ambassador. 

330. Over what territory and waters has a sovereign state ab- 
solute jurisdiction? 

331. Distinguish between the character of the duties performed 
by a foreign minister and the character of the duties performed by 
a consul. In what way are these officers chosen? 

332. What are the chief duties of an ambassador? Explain 
why ambassadors are not subject to the laws of the countries to 
which they are sent. 

333. When was the Hague conference formed? What was the 
object of forming an international court of arbitration ? 

334. What is an embargo? What is its object? How many 
kinds of embargo are there ? 

335. Mention some of the causes that would justify a nation in 
resorting to war. 

336. Under what obligations to other nations is a nation going 
to war? Is a declaration of war necessary to a state of war? 

337. State the essential rights of non-combatants in time of war. 

338. Define contraband of war; imperfect neutrality; non-com- 
batants. 

339. Has a nation a right to raise a "black flag" when going to 
war with another ? Why ? 

340. How do the laws governing the capture of the property of 
a belligerent on sea differ from those governing its capture on land ? 
Define belligerents. 

341. What is a blockade? Define a paper blockade. Is a 
paper blockade binding? 

342. What is meant by neutrality in case of war between foreign 
powers? What restrictions does neutrality impose? 



INTERNATIONAL LAW 343 

343. State the Monroe doctrine. Why is its maintenance im- 
portant in this country ? What are the dangers from a too exten- 
sive application of it ? 

344. What is the rule regarding neutral goods on an enemy's 
vessel? An enemy's goods on a neutral vessel? 

345. Define intervention. Under what circumstances may neu- 
tral nations intervene? 

346. What is meant by the "balance of power" in Europe? 
Is there any principle corresponding to it on this continent? 



CHAPTER XXIII 
MUNICIPAL LAW 

465. Statement of Subject. Intercourse between nations is 
regulated by international law. Similarly, the intercourse of 
every state with its citizens and subjects and of those sub- 
jects with each other is regulated by law, and to this is ap- 
plied the term " municipal law." In studying the constitution 
of the United States and those of the different states, we have 
been dealing with one portion of municipal law as it exists 
in this country. In addition, however, to these fundamental 
laws outlining our frame of government and guaranteeing to 
individuals certain vitally important rights, there exists a 
great body of law intended to define clearly and to secure, on 
the one hand the rights of individuals in their relations with 
the state and with each other, on the other, the rights of the 
state, i.e., of the public, as against individuals. It is the aim 
of this chapter to direct attention very briefly to the most 
important of these provisions of municipal law. 

466. Municipal Law and Individual Rights. One princi- 
pal object of municipal law has been the preservation and 
vindication of individual rights, not only of those funda- 
mental rights guaranteed in this country by our federal and 
state constitutions, but also of the innumerable rights aris- 
ing out of the relations of husband and wife, parent and 
child, guardian and ward, and master and servant. If these 
rights were simply recognized as existing, without more 
definite prescription, by rules emanating from the legisla- 

344 



MUNICIPAL LAW 345 

ture or other sources, of the precise manner in which they 
are to be safeguarded, the recognition would avail little. 
Hence the necessity for this great body of municipal law. 

467. Common and Statute Law. In an earlier chapter 
(§ 1 6), we glanced at the way in which individual rights 
have developed in organized society. As these rights grad- 
ually gained general recognition, society began to follow cer- 
tain rules in punishing violations of them. These rules be- 
came in time thoroughly established customs, and finally 
received judicial sanction in the decisions of the highest 
courts. It is these unwritten laws, which have originated 
in this way, that now make up what is known as our common 
law. In addition to this common law the state has pre- 
scribed certain rules of conduct, sometimes modifying, some- 
times supplementing it. These written enactments consti- 
tute the statute law. Many of the rules of common law 
have been superseded by them, and the practice has been in 
some cases reversed. 

468. Civil and Criminal Law. The state recognizes a very 
important distinction in applying these rules to its citizens. 
Certain offences are in the nature of private wrongs, as when 
one person interferes with another's rights of property in a 
breach of contract, or injures his reputation by slander. On 
the other hand, there is another class of offences, such as 
murder and burglary, which are looked upon as public 
wrongs. These "reach through and beyond the individual 
wronged to the social fabric of which he forms a part, and 
violate the peace and order of the state." The former are 
termed civil offences; the latter criminal offences or crimes. 

469. Property and Estates Defined. To the protection of 
the right of private property and the redress of the wrongs by 



346 CIVIL GOVERNMENT 

which it is violated, the law devotes the greater share of its 
attention. Property may be of two kinds, real and personal. 
Real property is immovable property, including land and 
whatever may be growing or erected thereon, and all that is 
beneath the soil; personal property is movable property — 
such things as may be taken by the owner wherever he goes. 
The law carefully distinguishes between the property itself 
and the interest which the owner may have therein. This 
interest is called an estate. These estates may be of differ- 
ent kinds. There are but two recognized interests in per- 
sonal property, viz., an absolute and a qualified estate. In 
the former the estate cannot be lost without some act on the 
part of the owner, whereas the latter may be lost without his 
act or default. Not all the different estates in real property 
need be considered here. The more important are an estate 
in fee, an estate for years, an estate for life, and an executory 
estate. An estate in fee is one given to a person and his 
heir ''absolutely without any end or limit." An estate for 
years is an interest limited by a term of years. An estate for 
life is limited by the life of the holder or some other speci- 
fied person. An executory estate is an estate created to 
commence at some future time. 

47(K Contracts : Defined and Classified. A contract is one of 
the means of acquiring an estate in both real and personal 
property. A contract is "an agreement between two or 
more persons, upon sufficient consideration, to do or not to 
do a particular thing." Contracts may be classed as to 
form as written or oral, and as to the time when they go into 
operation as executory or executed. An executed contract 
is "one in which nothing remains to be done by either party, 
and where the transaction is completed at the moment the 



MUNICIPAL LAW 347 

agreement is made." An executory contract is an agree- 
ment to "perform some future act." A sale accompanied 
by delivery and payment would be an example of the former; 
an agreement to build a house within a year, of the latter. 
Contracts may also be classed as express and implied. An 
express contract is one where the terms are "openly and 
fully uttered and avowed at the time of making." It is not 
necessarily a written contract. A formal contract is an ex- 
press contract, written or oral. A lease would be an ex- 
ample of this kind of contract. An implied contract is one 
that is largely a matter of inference and deduction. When 
one person hires another to perform a piece of work, nothing 
may be said as to the remuneration. The contract is an im- 
plied one in so far as hiring presupposes payment for the 
labor. 

471. Conditions Governing Contracts. Every contract must 
satisfy four conditions in order to be enforceable, (i) The par- 
ties contracting must be competent. Four classes of persons 
are usually regarded as incompetent : (a) infants, (b) married 
women, (c) insane persons, and (d) persons under guardian- 
ship. The term "infant " is applied to persons under a certain 
age, usually twenty-one. An infant, however, may contract 
for the necessaries of life. A married woman may also make 
contracts which involve her own property. The term " guard- 
ian " is applied to any one upon whom the care of the person 
or estate of a minor has been conferred by law. Any con- 
tracts involving the minor, or ward, as he is called, are made 
by the guardian. (2) If a contract be made under fear of 
injury it is voidable at the pleasure of the contracting party. 
(3) A contract must be based on a sufficient consideration. 
This may be of two kinds: pecuniary, or convertible into 



348 CIVIL GOVERNMENT 

money; or founded on mere love or affection or gratitude. 
There must be a subject-matter to be contracted for. In 
other words, the parties to a contract must make an agree- 
ment as to property, "whether it be a material object or a 
mere right and obligation." (4) Finally there must be "an 
actual contracting by proposal on the one side and accept- 
ance on the other;" the parties must mutually assent to the 
agreement. The other rules which determine the validity of 
a given contract depend upon the law of the place where the 
contract is made and is to be performed. The law of all 
states generally requires that contracts involving land or 
running over a long term of years shall be written. 

472. A Breach of Contract involves a civil suit, but the 
law governing such an action is determined entirely by the 
place where the suit is brought. A statute of limitations re- 
quires that the suit be brought before the court within a 
reasonable time. The law, generally speaking, knows no 
other remedy than the payment of money for a breach of 
contract. This kind of remedy is often inadequate or un- 
satisfactory, as no amount of money can compensate the 
aggrieved party under certain conditions. The fulfilment 
of the letter of the contract or cessation of a particular line 
of conduct is often the only just means of settling the differ- 
ence. The general law of contract as outlined above applies 
alike to real and personal property. There are so many 
points of difference, however, in the laws governing the 
various estates in real and personal property that it is 
necessary to consider the two kinds of property separately. 

473. Real Property : Deeds and Mortgages. Two common 
methods of transferring estates in real property are by deeds 
and by mortgages. A deed is a written instrument transfer- 



MUNICIPAL LAW 349 

ring an estate to another to take effect during the lifetime of 
the grantor. A deed may either create an estate where 
none before existed or modify one already created. To 
the former class belong deeds of bargain and sale, gifts, 
grants and leases; to the latter, assignments. Besides 
conforming to the general conditions governing contracts, 
these instruments must be written, must be set forth legally 
and in an orderly manner, must be free from any erasures or 
interlineations not explained in the instrument, and must be 
sealed and delivered. These are signed by the grantor, and 
must be acknowledged and witnessed. In some cases, when 
the transfer is made by a married man, the wife also must 
sign the instrument. If she fails to sign it, she still retains 
in the property her dower interest which she acquired by 
marriage. In no case can any estate be transferred by a 
deed without the delivery of the same during the lifetime 
of the grantor. Although recording a deed is not essential 
to its validity, it insures the grantee against the claims of 
the grantor's creditors and of his subsequent bona fide pur- 
chasers or mortgagees. In other words, it may prevent a 
second transfer or secure the first purchaser in the posses- 
sion of the property. A mortgage is a written instrument 
given as security for money loaned, whereby the debtor 
creates an estate in real property conditioned to become void 
on the payment of the obligation. In case the person giving 
a mortgage fails to meet the obligation incurred thereby, 
his property is sold to satisfy the debt. This procedure is 
called foreclosure. 

474. Gift and Will. The title to real property may also be 
acquired through gift or by will. A gift is the " voluntary 
conveyance or transfer of property without consideration of 



35© CIVIL GOVERNMENT 

money or of blood." A gift may be made in expectation of 
death, and becomes voidable in case of the recovery of the 
donor. Delivery is essential to the validity of a gift in case 
the property is subject to actual delivery. As real property 
cannot be delivered, some act equivalent to delivery is neces- 
sary to make the gift valid. A debtor on the verge of in- 
solvency may not give away his property to the prejudice of 
his creditors. A will is the disposition of one's property to 
take effect after death. It may be modified by a codicil, 
which is simply an addition to or qualification of a will. A 
will disposing of real property must be in writing and must 
be signed by the testator (the person making the will). He 
must be competent, as in the case of a contract. In nearly 
all of the states he must sign the will in the presence of wit- 
nesses, and the witnesses must attest to the genuineness of his 
signature. A will may be revoked at any time by destroying 
it, by making a new will expressly revoking the old one, or 
by the testator's marriage and the birth of a child. A will 
usually provides for the carrying out of its provisions by 
some person, called an executor (if a man) or an executrix 
(if a woman). 

475. Lease. A lease has already been mentioned as a form 
of deed. It is a transfer of an estate for years in real prop- 
erty. "This is one of the most important estates known in 
law." It is a contract between a landlord and tenant im- 
plying certain responsibilities as to each other and the prop- 
erty. A lease, in common with all contracts, must be written 
when it involves a long period of years. Usually the law 
demands that leases for a longer period than a year shall be 
written. The tenant is bound to take good care of the prop- 
erty entrusted to him, i.e., he must return it to the landlord 



MUNICIPAL LAW 35* 

in the same condition in which he received it, allowing, of 
course, for the ordinary wear and tear. If the property needs 
to be repaired, the tenant is liable for the ordinary repairs; 
the landlord for all others. If the tenant violates the con- 
tract in any respect, he may be evicted. The landlord can- 
not, however, take the law into his own hands and proceed 
to set the tenant's goods into the street. He must first apply 
to the courts, and they entrust the execution of the process to 
the sheriff or a similar officer. If the owner of a piece of prop- 
erty sells it during the period of its occupancy by a tenant, 
the tenant may remain until his lease expires but pays the 
rent to the new owner. If the tenant prefers, he may quit 
the property, as the contract was primarily between him and 
the original owner. If he has sown crops with the knowl- 
edge that his lease will expire before the time for harvesting 
the same, he forfeits their ownership to the landlord. Other- 
wise, he is entitled to the results of his labor, even if his lease 
is for an indefinite period and subject to the will of the land- 
lord for its termination. An assignment occurs when the 
tenant transfers his entire interest in the property to a new 
tenant. In this case the new tenant pays the rent directly 
to the landlord. A sublease is given where the tenant lets 
a part of his interest to another. In this case the rent is 
paid to the tenant. In case the lease is for an indefinite 
period, the landlord is required, when he wishes to secure 
possession of the property, to serve upon the tenant a notice 
to quit. 

476. Appurtenances. When real property is transferred 
there are various minor rights, called appurtenances, which 
go with it. When a house is transferred, the new owner 
acquires the right to the blinds, the keys, the trees on the lot, 



35 2 CIVIL GOVERNMENT 

and any minerals which may be beneath the soil. Appur- 
tenances may be of other kinds, such as the right of way 
across another's property, or the right to the use of a stream. 
They may be acquired either by grant or by long use. They 
may be forfeited by granting them back to the original pos- 
sessor or to a new one, or by disuse for a period of twenty 
years. 

477. Personal Property : Sale. The principal contracts by 
which estates in personal property fnay be acquired are con- 
tracts of sale, contracts of agency, contracts of partnership, 
and contracts of indorsement. A sale proper is the trans- 
fer of personal property for money. It must be carefully 
distinguished from barter. The latter implies simply an 
exchange of one thing for another, presumably its equiva- 
lent in value. In a true sale, one of the things exchanged 
must be money. As a sale is a contract relation, it must, of 
course, satisfy the conditions governing a valid contract. 
There are some special conditions which must likewise be 
satisfied. Perhaps the most important of these is that the 
property must have an "actual or potential existence" to 
constitute a valid transfer. Delivery, however, is not neces- 
sary to make the sale binding. The right of possessing the 
goods passes to the buyer the moment he tenders the price ; 
and if the goods are sold on credit, the buyer, is likewise 
entitled to their immediate possession. If the buyer fails 
to secure the goods and leaves them with the seller , he not 
only runs the risk of losing them in case of their destruction 
by fire, but he may be defrauded of them by the original 
possessor's selling them a second time, in which case the orig- 
inal possessor may be sued for damages. Any sale made 
by a debtor to a third party with the understanding that the 



MUNICIPAL LAW 353 

thing sold shall remain in his hands is void. The law pro- 
vides, however, that if a chattel mortgage be given by the 
debtor to the third party purchasing, the sale is valid, no 
matter how many creditors the man may have, or who has 
possession of the goods. A chattel mortgage is simply a 
paper given as security for the money tendered, and prevents 
the debtor from reselling the goods, thus protecting the pur- 
chaser. 

478. Transfer of Title. The general rule as to the transfer 
of title or right to the property is that the seller can transfer 
only those rights which he has in the property. If, then, the 
property be stolen property, the purchaser obviously ac- 
quires no right to the same, as the seller transferred none. 
An exception is made, however, in the case of negotiable 
paper which may be stolen before it is due. The reason for 
this is that such paper is so readily transferred from one per- 
son to another that many might suffer if the ordinary rule 
were applied. When the seller covenants or undertakes to 
insure that the thing which is sold is his own, he is said to 
warrant the title. Such action secures the purchaser against 
loss in case of misrepresentation. Likewise, if he expressly 
guarantees the quality, the purchaser is also secured against 
loss. Where the seller does not say anything about the 
quality, the purchaser buys at his own risk and cannot re- 
cover from the seller if the goods do not measure up to 
a certain standard. In case property be sold on credit, the 
seller sometimes retains the title to the property until full 
payment is made. 

479. Liens. A hen may be defined as the "right vested in 
one man to retain possession of the property of another until 
some charge upon it or some pecuniary claim on account of 



354 CIVIL GOVERNMENT 

it has been satisfied." A lien, then, usually implies the pos- 
session of the article, and is lost when the article has passed 
out of the hands of the creditor. "In trade, however, a lien 
sometimes continues even after the delivery of property, if it 
be the general usage and the right of lien be made a part of 
the contract." 

480. Agency. Agency is a "relation between two or more 
persons by which one party ... is authorized to do certain 
acts for . . . the other," called a principal. This relation- 
ship is a very common one in the business world. The 
clerk in the store, the cashier in the bank, the superintend- 
ent of a railroad, are all agents acting for principals. In 
general the principal is liable for acts of the agent. If, how- 
ever, the agent exceeds his authority, or is acting for himself 
while pretending to act for his principal, or refuses to disclose 
his principal, he becomes liable for his acts. An agent 
often has a lien upon the property of the principal. This 
can be illustrated by the commission merchant. It is his 
business to sell goods, usually in bulk, for his principal on 
a commission. If the commission is not forthcoming, he 
may exercise his right of lien by holding the goods consigned 
to him to be sold. The broker differs somewhat from the 
commission merchant. He never has goods in his posses- 
sion, but it is his business to bring the buyer and the seller 
together. He is also paid a commission. 

481. Partnership. A contract of partnership is "a con- 
tract by which two or more persons unite their property or 
labor in some lawful business, and agree to divide the profits 
or bear the loss in certain proportions." By this contract 
each member of the partnership acquires an interest in the 
partnership property and becomes at the same time liable 



MUNICIPAL LAW 355 

for any engagements or transactions made by any other 
member of the concern. In all matters pertaining to the 
partnership the act of one partner binds all. A secret part- 
ner becomes liable with the others if his identity is disclosed. 
There are various ways in which partnerships are dissolved. 
The most common means are by an act of the parties, by 
the act of God, and by the act of law. Either party may 
dissolve it, if it be for an indefinite period. If it be for a 
term of years, it may only be dissolved by the courts or by 
the "act of God," as by the death of one of the partners. In 
case of a dissolution, notice must be served upon all having 
dealings with the firm, but a newspaper notice suffices for 
the general public. 

482. Negotiable Paper : Forms. A contract of indorsement 
transfers an interest in negotiable paper. This is any paper 
that may be sold and passed from hand to hand under 
certain limitations, as we pass coin or bank bills, i.e., paper 
which is capable of ready transference from one person to 
another. Checks, bills of exchange, and promissory notes 
are forms of negotiable paper. A bill of exchange or a draft 
is a "request by one person to another to pay a third person 
a certain sum of money mentioned in the paper." The per- 
son executing or signing the draft is the drawer; the person 
called upon to pay the same, the drawee; and the person who 
is designated to receive the money is the payee. A check is 
very similar to a bill of exchange. It is an order upon a 
bank given by one person in favor of another. The bank 
then stands in the relation of drawee. A promissory note is 
a simple promise by one person to pay another a specified 
sum. There are only two parties to a note, viz., the maker, 
the one signing the note; and the payee, the one in whose 



35 6 CIVIL GOVERNMENT 

favor it is made. "No precise words of contract are essen- 
tial in a promissory note, provided they amount in a legal 
effect to a promise to pay." (Spalding, Encyclopedia, p. 
149.) The usual form is as follows : 

$ . Place , Date . 



Ninety days after date I promise to pay John Doe, 

or bearer (or order), five hundred dollars, at — , 

with interest thereon, at the rate of per cent 

per annum, from date (or maturity) until paid. 
Value received. 

(Signed) D. R. 

The law is more strict about the wording of a bill of ex- 
change. The following is the usual form: 

$ . Place , Date . 



days (or months) after sight (or date) pay 

to John Doe, or order, dollars, value received 

(on account of , or, and charge to the 

account of). 

To B. (at) . 



(Signed) D. R. 

The following is the usual form for a check : 

S . Place — — , Date 



First National Bank, pay to the order of John 

Doe, dollars. 

(Signed) D. R. 

483. Use. These forms of negotiable paper make unne- 
cessary the handling of large sums of money and the conse- 



MUNICIPAL LAW 357 

quent inconvenience and danger attendant upon its use, 
and therefore have a wide use in the business world. If A 
living in New York owes B living in New Orleans a sum of 
money, and A has money deposited in a bank in New York, 
he goes to this bank and secures from it an order upon a bank 
in New Orleans with which the New York bank does busi- 
ness to pay B the amount of the debt. If B happens to have 
money in this bank, the amount is placed to his credit. In 
the course of a few months the amount advanced by these 
banks in similar transactions may balance, and consequently 
but little actual money may change hands. Again, C may 
owe A the amount of A's debt to B or more, and by A's draw- 
ing an order upon C to pay B, two obligations may be dis- 
charged by a single transaction. The check also answers 
much the same purpose. 

484. Indorsement: Kinds. All these forms of paper are 
transferred and made negotiable by indorsement. This is 
any writing on the back transferring the rights of the 
holder to some other person. An indorsement in blank con- 
sists in simply writing the name of the indorser on the back 
of the paper, and this makes it transferable to any one 
holding it. A full indorsement is where there appears on the 
back of the paper the name of the person in whose favor 
it is made. A qualified indorsement is where the liability 
of the indorser is limited, either by adding the word 
" cashier," which serves to indicate that he is the agent of 
some corporation, or the words "without recourse to me." 

485. Liabilities of Indorsement. Indorsement implies lia- 
bility on the part of the indorser. In the case of a promissory 
note the maker is, of course, the principal debtor. If the 
payee indorses it and sells it to another, he, too, becomes 



35 8 CIVIL GOVERNMENT 

liable to the purchaser for the amount of the note in case it 
is not paid when due. Every indorser as well as the maker 
then may be sued for the payment of the note. When a 
bill of exchange is presented to the drawee, he is not morally 
or legally bound to honor the same. If, however, he prom- 
ises to pay the amount to the payee or holder when it be- 
comes due, he is said to accept it. This operation makes 
him a party to the contract and transfers the burden of the 
obligation from the maker to the drawee. If he refuses to 
accept the bill, then the holder looks to the maker and in- 
dorsers for the amount involved. A notice is usually served 
in this event on the drawee and indorsers. When negotiable 
paper is transferred after maturity, the new possessors ac- 
quire no further rights or incur no obligations but those 
inherent in the bill when it became due. The purchaser 
then takes the note at his peril. If no time payment is speci- 
fied in the paper, it is payable immediately. Forged paper 
acquires no value by transference, and may, therefore, cause 
loss to many. A note or bill does not begin to draw interest 
until maturity, unless otherwise specified therein. 

486. Transfer of Personal Property by Gift and Will. The 
law of gift and will has already been considered in connec- 
tion with real property. Much that was said in that con- 
nection applies as well to personal property. As personal 
property is movable property, actual delivery is necessary to 
constitute a valid gift. The other conditions as to revoca- 
tion and the rights of creditors are the same as in similar 
transfers of real property. The requisites for a will of per- 
sonal property differ so much in the different states that it 
is impossible to state them here. The law usually requires 
such a will to be in writing except in cases of great necessity, 



MUNICIPAL LAW 359 

" as of a soldier in actual military service, or of a sailor while 
at sea." Property disposed of in this way is known as a 
legacy. A legacy is always conditioned on the debts which 
the testator may have incurred during his lifetime and which 
still remain unsettled. Such a will may be revoked by de- 
struction or express revocation. When a person dies with- 
out leaving a will, he is said to die intestate. The property 
is then entrusted by the courts to a person called an admin- 
istrator, who must distribute the property according to law. 
Each state prescribes carefully who shall inherit property. 

487. Personal Security : Libel and Slander. Only a few of 
the laws guaranteeing the security of the individual need be 
considered here. The law guarantees the personal security 
of all as to reputation by laws against slander and libel. 
These offences are similar in character in that they consist 
of false statements that will injure the character of another. 
A libel, however, must be written or printed; a slander is 
simply an oral statement. The punishment of libel is much 
more severe, and it is even accounted a crime against society 

' because of its wide circulation as compared with slander. 
The punishment for slander is usually a fine varying with 
the offence; the punishment of libel may include both fine 
and imprisonment. 

488. Relations of Parent and Child. The laws thrown 
about the relations of parent and child and of husband and 
wife form one of the greatest bulwarks of our institutions. 
The law recognizes in both relations mutual rights and du- 
ties. The parent among other things is entitled to the cus- 
tody of the child, and if the child be working he is also en- 
titled to his wages. He may punish the child, but not with 
excessive cruelty. The child, on the other hand, is entitled 



360 CIVIL GOVERNMENT 

to support. If the parent denies this, the child may secure 
it by contracting with some other person for it. If, how- 
ever, the father die and the mother be left with the support 
of minor children, the law generally does not demand that 
she support them. The father is obliged to support his minor 
children even if they possess property of their own. Children 
who are able are obliged to support indigent parents. 

489. Relations of Husband and Wife. The most impor- 
tant relations between husband and wife are in general those 
arising under the marriage contract. The same general rules 
which were mentioned above as applying to all contracts apply 
to the marriage contract. The age at which the law allows 
persons to enter into the marriage relation is called the age of 
consent. This is usually twenty-one for man and eighteen 
for woman. The law does not recognize a marriage of 
near relatives. The ceremony required to constitute a valid 
marriage must be of a nature to show that the assent of the 
parties is mutual and that they are aware of the terms of the 
agreement which they are making. Marriages are sometimes 
contracted in New York state by drawing up a formal con- 
tract in the presence of the proper authorities and signing 
the same in the presence of witnesses. The wife is entitled 
on marriage under the common law to the dower right, i.e., 
the right to the use of one-third of any real estate her hus- 
band may have had at the time of the marriage or that 
he may acquire during his lifetime. The husband, how- 
ever, acquires no right by marriage to the property of his 
wife, excepting in case she dies intestate after children 
are born to the family. The common law long recognized 
the dependence of the wife, and would not permit her to enter 
into any contract relation after marriage. This, of course, 



MUNICIPAL LAW 361 

placed her property at the disposal of her husband. The 
statute law has changed this, and she may sell and transfer 
her separate property as though she were single. The wife 
is entitled to support under the marriage contract, and may 
compel her husband to support her even if they have sep- 
arated, providing the separation is through some fault of his. 
If the wife be responsible for the separation, or if a court has 
granted them a divorce, then his responsibility for her sup- 
port is terminated. 

490. Crimes : Punishment. There remain for consideration 
those offences which not only threaten the rights of an in- 
dividual but in a larger sense are wrongs against society. 
Violations of any of the laws already considered are largely 
matters of individual injustice. Crimes are public wrongs, 
and as such must be considered apart. The state makes a 
careful distinction, and punishes these public wrongs with 
greater severity than those in which individuals only are in- 
volved. In the latter case, a money penalty in the shape of 
a fine or a short imprisonment is sufficient to satisfy the in- 
jury. In the former the state inflicts a penalty with two 
objects in view, viz., "to reform the offender and deter him 
and others from committing like offences, and to protect 
society." The punishment varies from a simple fine to im- 
prisonment and death. Capital punishment, however, has 
lost favor in recent years with the progress of humane ideas 
throughout the civilized world. 

491. Crimes against Person. It is possible to note only 
some of the more important offences against society. Trea- 
son, the principal offence against the sovereignty of the state, 
has already been defined in another connection. Of the 
offences against the lives and persons of individuals, the most 



362 CIVIL GOVERNMENT 

important are murder, manslaughter, and robbery. Homi- 
cide is the general name applied to the taking of human life 
by human agency. If the killing be premeditated, or com- 
mitted in connection with the commission of a crime, it con- 
stitutes murder; if the killing be without malice or intention, 
it is manslaughter. Robbery is taking from another with 
criminal intent his property by violence or by putting him 
in fear of injury. 

492. Crimes against Property. The common crimes 
against private property are arson, burglary, larceny, and 
embezzlement. Arson is "maliciously burning another's 
house ... or other property." * Arson in the first degree 
is burning an inhabited dwelling at night. Burglary is 
"breaking and entering the house of another . . . with in- 
tent to commit a felony." 2 Larceny is criminally taking 
away the property of another without his consent and with 
the intent to convert it to the offender's own use. It differs, 
then, from robbery in that violence does not enter into the act. 
Grand larceny is where the amount taken is large; petit 
larceny, where it is of small value. Embezzlement (classed 
as larceny in some states) may be confused with larceny. 
It consists primarily in employing or removing as one's 
own what may have been entrusted to one. Forgery is an 
offence against public and private securities, and consists 
in wilfully making or altering any writing with intent to 
defraud. 

493. Crimes against Public Morals. Bigamy and polyg- 
amy are offences against public morals. The first consists 
in contracting a second marriage when another already ex- 
ists; the latter in having plural wives or husbands. 

1 See Spaulding Encyclopedia. 2 Ibid. 



MUNICIPAL LAW 363 

494. Criminal Intent : Accessories. The intent to commit 
a crime is punishable no less than is its actual commission, 
although the punishment is often not so severe in case of a 
failure to commit the act. A person planning a crime, as 
well as the actual perpetrator, is also liable to punishment. 
The law recognizes two classes of accessories, those before 
the fact and those after the fact. The latter consist of per- 
sons who assist the criminal to escape, or who willingly render 
him any assistance to thwart the ends of justice after the act 
has been committed. The power to arrest a person com- 
mitting a crime is vested in any one who may see the act. If 
a person be only suspected of committing a crime, he can 
only be arrested on a warrant sworn to before a court and 
executed by an officer of the court. 

495. Criminal and Civil Suits : Procedure Compared. The 
procedure in criminal and civil suits is similar in some re- 
spects. There are, however, marked differences, as will be 
noted in a careful examination of the steps in each. The 
parties involved are termed the plaintiff and the defendant. 
In a criminal case the person accused is the defendant, and 
the people of the state are the plaintiffs or parties bring- 
ing the action. In like manner, in a civil case the party 
bringing the suit is termed the plaintiff and the other the 
defendant. 

496. Civil Suit. The first step in a civil case is usually a 
summons served by the plaintiff or his lawyer requiring the 
defendant to appear in person or through his lawyer at a 
given place, usually a court, to answer the complaint in an 
action. The summons may be accompanied by the com- 
plaint. If they are separate documents, then the complaint 
or charge is served on the appearance of the defendant or 



364 CIVIL GOVERNMENT 

his lawyer. If the latter fails to appear, then the court en- 
ters judgment against the defendant. If he appears, he 
files his answer or demurrer. If these papers, called the 
pleadings, agree, then the plaintiff takes judgment, as there 
is no need of a trial. A trial is for the purpose of ascertain- 
ing the facts in the case and applying the law to the facts as 
determined by the evidence. At the desire of either party 
involved, the law allows the case to be tried before a jury. 
In some cases the hearing is before a judge alone. In jury 
cases, after a jury has been impanelled, the plaintiff or his 
lawyer opens the case and examines witnesses to prove his 
assertions, each of whom is subject to a cross-examination 
by the other side to bring out any facts likely to be preju- 
dicial to the plaintiff or favorable to the defendant. The 
defendant's side is then presented, his witnesses are exam- 
ined, and then cross-examined by the opposing counsel. 
The case is then summed up, usually by the defendant fol- 
lowed by the plaintiff. The judge then instructs the jury 
as to the law involved, and the jury retire to deliberate on 
the case. When they return they render through their chair- 
man (one of their number chosen by them) a decision called 
a verdict. The defeated party usually pays the costs of bring- 
ing the action and drops the case, or takes an appeal to a 
higher court. 

497. Criminal Suit. The national and state constitutions 
contain clauses requiring the grand jury to find an indictment 
before a person can be tried for an infamous or capital 
crime. This step may or may not be preceded by the arrest 
of the criminal. The law regards every man as innocent 
until he is proved guilty, and treats him accordingly through- 
out the trial. After a "true bill" indicting him has been 



MUNICIPAL LAW 365 

found, a time is appointed for his trial, and he secures or is 
furnished counsel for his defence. He may secure the at- 
tendance of witnesses by a subpoena, which is a writ compel- 
ling the attendance of persons having a knowledge of the 
crime. Before the trial the criminal is arraigned and allowed 
to plead guilty or not guilty. If he pleads guilty, the court 
proceeds to fix the sentence. The state of New York does 
not permit a man to plead guilty to an offence punishable by 
death. If he pleads not guilty, the state arranges for a trial, 
which is conducted in much the same way as in a civil suit. 
It is the business of the. jury to determine the guilt or inno- 
cence of the accused on the basis of the evidence, and the 
judge fixes the sentence. 

Library References. — Macy, Chaps. XV-XVI, XX; Macy, First Les- 
sons, Chap. XV; Townsend, Commercial Law, Chaps. I-IV, VII, XI-XII, 
XIX-XX; Bigelow, Bills and Notes, Chaps. II- VI, X-XVI; Dole, Chaps. 
XV, XXXVIII; Wharton; Spalding, Encyclopedia; Clark. 

QUESTIONS ON THE TEXT 

347. Define law, common law, statute law. 

348. Distinguish between constitution and a statute law. 

349. Define personal property. 

350. Define real estate, fee simple, estate in fee. Define a 
guardian. 

351. What is a life estate in real property? 

352. What is a contract? Mention three things essential to 
the validity of a contract. Give an example of a contract that is 
not binding. 

353. What is the fundamental rule of law with regard to con- 
tracts ? 

354. Mention three exceptions to this rule. 

355. Mention two classes of persons who cannot be compelled 
to fulfill a contract. 

356. Define the following classes of contracts: (1) oral; (2) writ- 
ten; (3) express; (4) implied. 



366 CIVIL GOVERNMENT 

357. What is the consideration of a contract? Is it necessary to 
the validity of a contract? 

358. What persons are infants in the eyes of the law? In what 
respect are their powers limited? 

359. Describe the process of transferring the title to real estate 
in this state. 

360. Define the statute of limitations, deed, warranty deed, dower. 

361. Explain the meaning of the term " adverse possession " as 
applied to real estate. 

362. In purchasing real estate what investigations as to title 
should be made, and what formalities observed? Give reasons. 

363. Explain the purpose of each of the following steps in the 
sale of real estate: signature of conveyor's wife; acknowledgment of 
signature; delivery of deed to purchaser; recording of deed. 

364. What is meant by recording a deed of real estate? Give 
two reasons why it is important that deeds be recorded. 

365. Where is the record of deeds and mortgages of real estate 
kept? 

366. What is a mortgage? What precaution should be taken 
by the mortgagee to make his claim secure in case of (1) a mort- 
gage on land; (2) a chattel mortgage? 

367. Mention three things essential to the validity of a real 
estate mortgage, and explain how the holder of such a mortgage 
may enforce his claim in default of payment. 

368. Who may make a will? Define codicil. 

369. What is a will? What formalities as to signature and wit- 
nesses are necessary to give validity to a will? Mention two ways 
in which a will may be revoked. 

370. Define lease. What effect has the sale of leased property 
on the rights or liabilities of the tenant? When may a landlord 
evict his tenant and how must he proceed? 

371. Define right of way. 

372. In what manner is personal property transferred? Define 
lien. 

373. Explain what is meant by filing a chattel mortgage. Why 
are such steps necessary? 

374. Define partnership, agency. 

375. State the fundamental rule which determines how far a 
principal is bound by the acts of his agent. 

376. What is commercial paper? Negotiable paper? 



MUNICIPAL LAW 3 6 7 

377. How may the holder of a note payable to his order transfer 
it and avoid liability for its payment? 

378. What are indorsements? Mention three kinds of indorse- 
ments. 

379. In case an indorsed note is not paid at maturity, what step 
is necessary to make the indorser liable? 

380. Explain the importance of the words "for value received" 
in a promissory note. 

381. State the differences between an administrator and an ex- 
ecutor. 

382. Define letters testamentary. 

383. If no will be made, how is the property of a man divided 
among his widow and children ? 

384. Define slander, libel; distinguish between them. 

385. State briefly the legal rights and obligations existing be- 
tween parent and child. 

386. Define crime. What is the object of punishing crime? 

387. Is lynch-law ever justifiable? Give a reason for your 
answer. 

388. What is a felony? Define arson. 

389. Define burglary, robbery. 

390. Define perjury; forgery; usury. 

391. Distinguish between (i) murder and manslaughter; (2) 
larceny and robbery. How is each punishable? 

392. Resolved: That capital punishment be abolished. Debate 
this question. 

393. Resolved: That the fines system tends to unequalize justice, 
and should, therefore, be abandoned. 

394. A person is arrested, charged with larceny; mention two 
rights possessed by the prisoner and give the successive steps that 
will result in his conviction or acquittal. 

395. What is a warrant; a subpoena? 

396. Define bail. Mention an offence that is not bailable. 

397. What is meant by indictment; conviction; acquittal? 

398. Give the smallest and the largest number of which a grand 
jury may be composed. What are the duties of a grand jury? 

399. Tell how a grand jury is drawn. 

400. Distinguish between a grand and a petit jury as to (1) 
number of members; (2) duties; (3) mode of conducting business. 

401. Describe the proceedings in an ordinary civil case. 



368 CIVIL GOVERNMENT 

402. Describe the different steps in the process of collecting a 
debt by a suit at law. 

403. A claims that B owes him $500 and refuses to pay it; de- 
scribe the legal procedure necessary to collect the debt. 

404. Define summons. By the service of what papers is a suit 
at law begun? 

405. What is a plaintiff? What is a defendant? 

406. What is an oath ? Define affirmation. 



APPENDIX 



ARTICLES OF CONFEDERATION 

Articles of Confederation and Perpetual Union between the States of 
New Hampshire, Massachusetts Bay, Rhode Island and Providence 
Plantations, Connecticut, New York, New Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North Carolina, South Carolina, and 
Georgia. 

Article I. — The style of this Confederacy shall be, "The 
United States of America." 

Article II. — Each State retains its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right, which is 
not by this Confederation expressly delegated to the United 
States in Congress assembled. 

Article III. — The said States hereby severally enter into 
a firm league of friendship with each other, for their common 
defense, the security of their liberties, and their mutual and gen- 
eral welfare, binding themselves to assist each other against all 
force offered to, or attacks made upon them, or any of them, on 
account of religion, sovereignty, trade, or any other pretense 
whatever. 

Article IV. — The better to secure and perpetuate mutual 
friendship and intercourse among the people of the different 
States in this Union, the free inhabitants of each of these States, 
paupers, vagabonds, and fugitives from justice excepted, shall 
be entitled to all privileges and immunities of free citizens in 
the several States ; and the people of each State shall have free 
ingress and egress to and from any other State, and shall enjoy 
therein all the privileges of trade and commerce, subject to the 
same duties, impositions, and restrictions as the inhabitants 
thereof respectively ; provided that such restrictions shall not 



ii CIVIL GOVERNMENT 

extend so far as to prevent the removal of property imported 
into any State to any other State of which the owner is an inhab- 
itant ; provided also, that no imposition, duties, or restriction 
shall be laid by any State on the property of the United States 
or either of them. If any person guilty of, or charged with, 
treason, felony, or other high misdemeanor in any State shall 
flee from justice and be found in any of the United States, he 
shall, upon demand of the governor or executive power of the 
State from which he fled, be delivered up and removed to the 
State having jurisdiction of his offense. Full faith and .credit 
shall be given in each of these States to the records, acts, and 
judicial proceedings of the courts and magistrates of every other 
State. 

Article V. — For the more convenient management of the 
general interests of the United States, delegates shall be annually 
appointed in such manner as the Legislature of each State shall 
direct, to meet in Congress on the first Monday in November, 
in every year, with a power reserved to each State to recall its 
delegates, or any of them, at any time within the year, and to 
send others in their stead for the remainder of the year. No 
State shall be represented in Congress by less than two, nor by 
more than seven members ; and no person shall be capable of 
being a delegate for more than three years in any term of six 
years ; nor shall any person, being a delegate, be capable of 
holding any office under the United States for which he, or 
another for his benefit, receives any salary, fees, or emoluments 
of any kind. Each State shall maintain its own delegates in 
any meeting of the States and while they act as members of 
the Committee of the States. In determining questions in the 
United States, in Congress assembled, each State shall have one 
vote. Freedom of speech and debate in Congress shall not be 
impeached or questioned in any court or place out of Congress ; 
and the members of Congress shall be protected in their persons 
from arrest and imprisonment during the time of their going to 
and from, and attendance on, Congress, except for treason, felony, 
or breach of the peace. 



ARTICLES OF CONFEDERATION iii 

Article VI. — No State, without the consent of the United 
States, in Congress assembled, shall send any embassy to, or 
receive any embassy from, or enter into any conference, agree- 
ment, alliance, or treaty with any king, prince, or state ; nor 
shall any person holding any office of profit or trust under the 
United States, or any of them, accept of any present, emolument, 
office, or title of any kind whatever from any king, prince, or 
foreign state ; nor shall the United States, in Congress assembled, 
or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confeder- 
ation, or alliance whatever between them, without the consent 
of the United States, in Congress assembled, specifying accu- 
rately the purposes for which the same is to be entered into, and 
how long it shall continue. 

No State shall lay any imposts or duties which may interfere 
with any stipulations in treaties entered into by the United States, 
in Congress assembled, with any king, prince, or state, in pursu- 
ance of any treaties already proposed by Congress to the courts 
of France and Spain. 

No vessels of war shall be kept up in time of peace by any 
State, except such number only as shall be deemed necessary 
by the United States, in Congress assembled, for the defense of 
such State or its trade; nor shall any body of forces be kept up 
by any State in time of peace, except such number only as, in 
the judgment of the United States, in Congress assembled, shall 
be deemed requisite to garrison the forts necessary for the defense 
of such State; but every State shall always keep up a well- 
regulated and disciplined militia, sufficiently armed and accoutred, 
and shall provide and constantly have ready for use in public 
stores a due number of field pieces and tents, and a proper 
quantity of arms, ammunition, and camp equipages. 

No State shall engage in any war without the consent of the 
United States, in Congress assembled, unless such State be actu- 
ally invaded by enemies, or shall have received certain advice of 
a resolution being formed by some nation of Indians to invade 
such State, and the danger is so imminent as not to admit of a 



iv CIVIL GOVERNMENT 

delay, till the United States, in Congress assembled, can be con- 
sulted ; nor shall any State grant commissions to any ships or 
vessels of war, nor letters of marque or reprisal, except it be after 
a declaration of war by the United States, in Congress assembled, 
and then only against the kingdom or state, and the subjects 
thereof, against which war has been so declared, and under such 
regulations as shall be established by the United States, in Con- 
gress assembled, unless such State be infested by pirates, in 
which case vessels of war may be fitted out for that occasion, and 
kept so long as the danger shall continue, or until the United 
States, in Congress assembled shall determine otherwise. 

Article VII. — When land forces are raised by any State for 
the common defense, all officers of or under the rank of Colonel 
shall be appointed by the Legislature of each State respectively 
by whom such forces shall be raised, or in such manner as such 
State shall direct, and all vacancies shall be filled up by the State 
which first made the appointment. 

Article VIII. — All charges of war, and all other expenses 
that shall be incurred for the common defense or general welfare, 
and allowed by the United States, in Congress assembled, shall be 
defrayed out of a common treasury, which shall be supplied by 
the several States in proportion to the value of all land within 
each State, granted to, or surveyed for, any person, as such land 
and the buildings and improvements thereon shall be estimated, 
according to such mode as the United States, in Congress assem- 
bled, shall, from time to time, direct and appoint. The taxes for 
paying that proportion shall be laid and levied by the authority 
and direction of the Legislatures of the several States, within the 
time agreed upon by the United States, in Congress assembled. 

Article IX. — The United States, in Congress assembled, 
shall have the sole and exclusive right and power of determining 
on peace and war, except in- the cases mentioned in the Vlth 
article ; of sending and receiving ambassadors ; entering into 
treaties and alliances, provided that no treaty of commerce shall 
be made whereby the legislative power of the respective States 
shall be restrained from imposing such imposts and duties on 



ARTICLES OF CONFEDERATION v 

foreigners as their own people are subjected to, or from prohib- 
iting the exportation or importation of any species of goods or 
commodities whatever ; of establishing rules for deciding, in all 
cases, what captures on land and water shall be legal, and in 
what manner prizes taken by land or naval forces in the service 
of the United States shall be divided or appropriated ; of granting 
letters of marque and reprisal in times of peace ; appointing 
courts for the trial of piracies and felonies committed on the 
high seas ; and establishing courts for receiving and determining 
finally appeals in all cases of captures ; provided that no member 
of Congress shall be appointed a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last 
resort on appeal in all disputes and differences now subsisting or 
that hereafter may arise between two or more States concerning 
boundary, jurisdiction, or any other cause whatever ; which author- 
ity shall always be exercised in the manner following : Whenever 
the legislative or executive authority, or lawful agent of any State 
in controversy with another, shall present a petition to Congress, 
stating the matter in question, and praying for a hearing, notice 
thereof shall be given by order of Congress to the legislative or 
executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents, 
who shall then be directed to appoint, by joint consent, commis- 
sioners or judges to constitute a court for hearing and determining 
the matter in question ; but if they cannot agree, Congress shall 
name three persons out of each of the United States, and from the 
list of such persons each party shall alternately strike out one, the 
petitioners beginning, until the number shall be reduced to thir- 
teen ; and from that number not less than seven nor more than 
nine names, as Congress shall direct, shall, in the presence of Con- 
gress, be drawn out by lot ; and the persons whose names shall 
be so drawn, or any five of them, shall be commissioners or judges 
to hear and finally determine the controversy, so always as a major 
part of the judges who shall hear the cause shall agree in the deter- 
mination ; and if either party shall neglect to attend at the day 
appointed, without showing reasons which Congress shall judge 



vi CIVIL GOVERNMENT 

sufficient, or, being present, shall refuse to strike, the Congress 
shall proceed to nominate three persons out of each State, and 
the secretary of Congress shall strike in behalf of such party 
absent or refusing; and the judgment and sentence of the court 
to be appointed in the manner before prescribed, shall be final 
and conclusive ; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim 
or cause, the court shall nevertheless proceed to pronounce sen- 
tence or judgment, which shall in like manner be final and deci- 
sive ; the judgment or sentence and other proceedings being in 
either case transmitted to Congress, and lodged among the acts of 
Congress for the security of the parties concerned ; provided that 
every commissioner, before he sits in judgment, shall take an oath 
to be administered by one of the judges of the supreme or superior 
court.of the State where the cause shall be tried, "well and truly 
to hear and determine the matter in question according to the 
best of his judgment, without favor, affection, or hope of reward." 
Provided, also, that no State shall be deprived of territory for the 
benefit of the United States. 

All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdictions, 
as they may respect such lands, and the States which passed such 
grants, are adjusted, the said grants or either of them being at the 
same time claimed to have originated antecedent to such settle- 
ment of jurisdiction, shall, on the petition of either party to the 
Congress of the United States, be finally determined, as near as 
may be, in the same manner as is before prescribed for deciding 
disputes respecting territorial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the 
respective States ; fixing the standard of weights and measures 
throughout the United States ; regulating the trade and managing 
all affairs with the Indians, not members of any of the States, 
provided that the legislative right of any State, within its own 
limits, be not infringed or violated ; establishing and regulating 



ARTICLES OF CONFEDERATION vii 

post-offices from one State to another, throughout all the United 
States, and exacting such postage on the papers passing through 
the same as may be requisite to defray the expenses of the said 
office ; appointing all officers of the land forces in the service of 
the United States, excepting regimental officers ; appointing all 
the officers of the naval forces, and commissioning all officers 
whatever in the service of the United States ; making rules for 
the government and regulation of the said land and naval forces, 
and directing their operations. 

The United States, in Congress assembled, shall have authority 
to appoint a committee to sit in the recess of Congress, to be 
denominated " A Committee of the States," and to consist of one 
delegate from each State ; and to appoint such other committees 
and civil officers as may be necessary for managing the general 
affairs of the United States under their direction ; to appoint one 
of their number to preside, provided that no person be allowed to 
serve in the office of president more than one year in any term of 
three years ; to ascertain the necessary sums of money to be raised 
for the service of the United States, and to appropriate and apply 
the same for defraying the public expenses ; to borrow money or 
emit bills on the credit of the United States, transmitting every 
half year to the respective States an account of the sums of money 
so borrowed or emitted ; to build and equip a navy ; to agree upon 
the number of land forces, and to make requisitions from each State 
for its quota, in proportion to the number of white inhabitants in 
such State, which requisition shall be binding ; and thereupon the 
Legislature of each State shall appoint the regimental officers, 
raise the men, and clothe, arm, and equip them in a soldier-like 
manner, at the expense of the United States ; and the officers and 
men so clothed, armed, and equipped shall march to the place 
appointed, and within the time agreed on by the United States, in 
Congress assembled ; but if the United States, in Congress assem- 
bled, shall, on consideration of circumstances, judge proper that 
any State should not raise men, or should raise a smaller number 
than its quota, and that any other State should raise a greater 
number of men than the quota thereof, such extra number shall 



viii CIVIL GOVERNMENT 

be raised, officered, clothed, armed, and equipped in the same 
manner as the quota of such State, unless the Legislature of such 
State shall judge that such extra number cannot be safely spared 
out of the same, in which case they shall raise, officer, clothe, arm, 
and equip as many of such extra number as they judge can be safely 
spared, and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on 
by the United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage 
in a war, nor grant letters of marque and reprisal in time of peace, 
nor enter into any treaties or alliances, nor coin money, nor regu- 
late the value thereof, nor ascertain the sums and expenses neces- 
sary for the defense and welfare of the United States, or any of 
them, nor emit bills, nor borrow money on the credit of the United 
States, nor appropriate money, nor agree upon the number of 
vessels of war to be built or purchased, or the number of land or 
sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same ; nor shall a 
question on any other point, except for adjourning from day to 
day, be determined, unless by the votes of a majority of the United 
States, in Congress assembled. 

The Congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of six months, and shall publish the journal of 
their proceedings monthly, except such parts thereof relating to 
treaties, alliances, or military operations as in their judgment 
require secrecy ; and the yeas and nays of the delegates of each 
State on any question shall be entered on the journal when it is 
desired by any delegate ; and the delegates of a State, or any of 
them, at his or their request, shall be furnished with a transcript 
of the said journal except such parts as are above excepted, to lay 
before the Legislatures of the several States. 

Article X. — The Committee of the States, or any nine of 
them, shall be authorized to execute, in the recess of Congress, 
such of the powers of Congress as the United States in Congress 



ARTICLES OF CONFEDERATION ix 

assembled, by the consent of nine States, shall, from time to time, 
think expedient to vest them with ; provided that no power be 
delegated to the said Committee, for the exercise of which, by the 
Articles of Confederation, the voice of nine States in the Congress 
of the United States assembled is requisite. 

Article XI. — Canada, acceding to this Confederation, and 
joining in the measures of the United States, shall be admitted 
into and entitled to all the advantages of this Union ; but no other 
colony shall be admitted into the same, unless such admission be 
agreed to by nine States. 

Article XII. — All bills of credit emitted, moneys borrowed, 
and debts contracted by or under the authority of Congress before 
the assembling of the United States in pursuance of the present 
Confederation, shall be deemed and considered as a charge against 
the United States, for payment and satisfaction whereof the said 
United States and the public faith are hereby solemnly pledged. 

Article XIII. — Every State shall abide by the determinations 
of the United States in Congress assembled on all questions which 
by this Confederation are submitted to them. And the Articles of 
this Confederation shall be inviolably observed by every State, and 
the Union shall be perpetual ; nor shall any alteration at any time 
hereafter be made in any of them, unless such alteration be agreed 
to in a Congress of the United States, and be afterwards confirmed 
by the Legislature of every State. 

And whereas it hath pleased the great Governor of the world to 
incline the hearts of the Legislatures we respectively represent in 
Congress to approve of, and to authorize us to ratify the said 
Articles of Confederation and perpetual Union know ye, that we, 
the undersigned delegates, by virtue of the power and authority to 
us given for that purpose, do, by these presents, in the name and 
in behalf of our respective constituents, fully and entirely ratify 
and confirm each and every of the said Articles of Confederation 
and perpetual Union, and all and singular the matters and things 
therein contained. And we do further solemnly plight and engage 
the faith of our respective constituents, and they shall abide by the 
determinations of the United States in Congress assembled on all 



x CIVIL GOVERNMENT 

questions which by the said Confederation are submitted to them ; 
and that the Articles thereof shall be inviolably observed by the 
States we respectively represent, and that the Union shall be 
perpetual. 

In witness whereof we have hereunto set our hands in Congress. 
Done at Philadelphia in the State of Pennsylvania the ninth 
day of July in the year of our Lord one thousand seven 
hundred and seventy-eight, and in the third year of the 
independence of America. 



CONSTITUTION OF THE UNITED STATES 



Preamble 

We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, provide 
for the common defense, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain 
and establish this Constitution for the United States of 
America. 



ARTICLE I. — LEGISLATIVE DEPARTMENT 

Section i. — Congress 

All legislative powers herein granted shall be vested in a Con- 
gress of the United States, which shall consist of a Senate and 
House of Representatives. 1 

Section 2. — House of Representatives 

The House of Representatives shall be composed of members 

chosen every second year by the people of the several States, and 

the electors in each State shall have the qualifica- 

eciono tions requisite for electors of the most numerous 

Members. ^ . 

branch of the State Legislature. 

No person shall be a representative who shall not have attained 

to the age of twenty-five years, and been seven 

years a citizen of the United States, and who shall 

not, when elected, be an inhabitant of that State in which he shall 

be chosen. 

Representatives and direct taxes shall be apportioned among 

the several States which may be included within this Union, 

1 The term of each Congress is two years. It assembles on the first Monday 
in December and " expires at noon of the fourth of March next succeeding the 
beginning of its second regular session, when a new Congress begins." 

xi 



xii CIVIL GOVERNMENT 

according to their respective numbers, 1 which shall be determined 
by adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. 2 The actual 
enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within 
every subsequent term of ten years, in such manner as they shall 
by law direct. The number of representatives shall not exceed 
one for every thirty thousand, but each State shall have at least 
one representative : and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to choose three; 
Massachusetts, eight ; Rhode Island and Providence Plantations, 
one ; Connecticut, five ; New York, six; New Jersey, four; Penn- 
sylvania, eight ; Delaware, one ; Maryland, six ; Virginia, ten ; 
North Carolina, five ; South Carolina, five ; and Georgia, three. 
When vacancies happen in the representation from any State, 

the executive authority 3 thereof shall issue writs of 
Vacancies. , „„ . 

election to fill such vacancies. 

The House of Representatives shall choose their Speaker 4 and 

Officers. other officers ; and shall have the sole power of 

Impeachment, impeachment. 



Section 3. — Senate 

The Senate of the United States shall be composed of two 
Number senators from each State, chosen by the Legislature 

of Senators: thereof, for six years ; and each senator shall have 
Election. one vote 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be 
into three classes. The seats of the senators of the first class 
shall be vacated at the expiration of the second year ; of the second 
class, at the expiration of the fourth year; of the third class, at 

1 The apportionment under the census of 1900 is one representative for every 
193,291 persons. 

2 The word " persons " refers to slaves. This paragraph has been amended 
(Amendments XIII and XIV) and is no longer in force. 

3 Governor. 

4 The Speaker is one of the representatives; the other officers — clerk, 
sergeant-at-arms, postmaster, doorkeeper, etc., — are not. 



CONSTITUTION OF THE UNITED STATES xiii 

the expiration of the sixth year, so that one-third may be chosen 
every second year; and if vacancies happen by resignation, or other- 
wise, during the recess of the Legislature of any 
Classification. _ ' x , & . , , , fe . J 

State, the executive x thereof may make temporary 

appointments until the next meeting of the Legislature, which shall 
then fill such vacancies. 

No person shall be a senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of 
the United States, and who shall not, when elected, 
be an inhabitant of that State for which he shall be chosen. 

The Vice-President of the United States shall be president 
President of of the Senate, but shall have no vote, unless they 
Senate. be equally divided. 

The Senate shall choose their other officers, and also a presi- 
dent firo tei?it>ore, in the absence of the Vice- 
Officers. 

President, or when he shall exercise the office of 

President of the United States. 

The Senate shall have the sole power to try all impeachments : 
When sitting for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States is 
Impeachment fr^d, tne Chief- Justice shall preside : and no per- 
son shall be convicted without the concurrence of 
two-thirds of the members present. 

Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and 
Judgment enjoy any office of honor, trust, or profit under the 

in Case of United States ; but the party convicted shall never- 

Conviction. theless be liable and subject to indictment, trial, 
judgment, and punishment, according to law. 

Section 4. — Both Houses 

The times, places, and manner of holding elections for senators 
Manner of an d representatives shall be prescribed in each State 

electing by the Legislature thereof; but the Congress may 

Members. at an y time, by law, make or alter such regulations, 

except as to the places of choosing senators. 2 

1 Governor. 

2 This is to prevent Congress from fixing the places of meeting of the state 
legislatures. 



xiv CIVIL GOVERNMENT 

The Congress shall assemble at least once in every year, and 
Meetings of such meeting shall be on the first Monday in Decem- 
Congress. ber, unless they shall by law appoint a different day. 

Section 5. — The Houses separately 

Each house shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each shall 
constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, in such 
manner, and under such penalties, as each house may provide. 
Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the 
concurrence of two-thirds, expel a member. 
Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy, and the yeas and 
nays of the members of either house on any ques- 
tion shall, at the desire of one-fifth of those present, be entered 
on the journal. 

Neither house, during the session of Congress, shall, without 
the consent of the other, adjourn for more than 
three days, nor to any other place than that in 
which the two houses shall be sitting. 



Section 6. — Privileges and Disabilities of Members 

The senators and representatives shall receive a compensation 1 

for their services, to be ascertained by law, and paid out of the 

treasury of the United States. They shall in all 

Pay and cases, except treason, felony, and breach of the peace, 

Privileges of 

Members ^e privileged from arrest during their attendance at 

the session of their respective houses, and in going 

to and returning from the same ; and for any speech or debate in 

either house, they shall not be questioned in any other place. . 

1 Five thousand dollars a year and twenty cents for every mile of travel each 
way from their homes at each annual session. There is also an allowance of 
one hundred and twenty-five dollars for stationery and newspapers. 



Prohibitions 



CONSTITUTION OF THE UNITED STATES xv 

No senator or representative shall, during the time for which 

he was elected, be appointed to any civil office under the authority 

of the United States, which shall have been created, 

or the emoluments whereof shall have been increased, 
on Members. , , , . . . , .. „ 

during such time ; and no person holding any office 

under the United States shall be a member of either house during 

his continuance in office. 



Section 7. — Method of passing Laws 

All bills for raising revenue shall originate in the House of 

Representatives ; but the Senate may propose or 
Revenue Bills. r ., , , u-ii 

concur with amendments as on other bills. 

Every bill which shall have passed the House of Representa- 
tives and the Senate shall, before it become a law, be presented 

to the President of the United States; if he approve, 
How Bills he shall • it but if not he shall return it ith 

become Laws. f ' ' . ,.,.,« 

his objections, to that house in which it shall 

have originated, who shall enter the objections at large on their 
journal, and proceed to reconsider it. If after such reconsidera- 
tion, two-thirds of that house shall agree to pass the bill, it shall 
be sent, together with the objections, to the other house, by which 
it shall likewise be reconsidered, and if approved by two-thirds of 
that house, it shall become a law. But in all such cases the votes of 
both houses shall be determined by yeas and nays, and the names 
of the persons voting for and against the bill shall be entered on 
the journal of each house respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) after 
it shall have been presented to him, the same shall be a law, in 
like manner as if he had signed it, unless the Congress by their 
adjournment prevent its return, in which case it shall not be a law. 
Every order, resolution, or vote to which the concurrence of 
the Senate and House of Representatives may be necessary 

(except on a question of adjournment) shall be 
etc U 1 QS ' presented to the President of the United States ; 

and before the same shall take effect, shall be 
approved by him, or being disapproved by him, shall be repassed 
by two-thirds of the Senate and House of Representatives, accord- 
ing to the rules and limitations prescribed in the case of a bill. 



CIVIL GOVERNMENT 



Section 8. — Powers granted to Congress 

The Congress shall have power: 

To lay and collect taxes, duties, imposts, and excises, to pay 

the debts and provide for the common defense 

Congress an( * & enera l welfare of the United States; but all 

duties, imposts, and excises shall be uniform 

throughout the United States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; 

To establish a uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States; 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities 
and current coin of the United States ; 

To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by securing, 
for limited times, to authors and inventors the exclusive right to 
their respective writings and discoveries ; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the 
high seas, and offenses against the law of nations ; 

To declare war, grant letters of marque and reprisal, 1 and make 
rules concerning captures on land and water ; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land 
and naval forces ; 

To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections and repel invasions. 

To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the 
service of the United States, reserving to the States respectively 

1 Letters granted by the government to private citizens in time of war, 
authorizing them, under certain conditions, to capture the ships of the enemy. 



CONSTITUTION OF THE UNITED STATES xvii 

the appointment of the officers, and the authority of training the 
militia according to the discipline prescribed by Congress ; 

To exercise exclusive legislation in all cases whatsoever over 
such district (not exceeding ten miles square) as may, by cession 
of particular States, and the acceptance of Congress, become the 
seat of the government of the United States, 1 and to exercise like 
authority over all places purchased by the consent of the Legis- 
lature of the State in which the same shall be, for the erection 
of forts, magazines, arsenals, dockyards, and other needful build- 
ings ; — And 

To make all laws which shall be necessary and proper for car- 
Implied r y m g m to execution the foregoing powers, and all 
Powers. other powers vested by this Constitution in the gov- 
ernment of the United States, or in any department or officer 
thereof. 

Section 9. — Powers forbidden to the United States 

The migration or importation of such persons as any of the 
States now existing shall think proper to admit, 
Absolute shall not be prohibited by the Congress prior to 

on Congress tne y ear one tnousan d eight hundred and eight, 
but a tax or duty may be imposed on such impor- 
tation, not exceeding ten dollars for each person. 2 

The privilege of the writ of habeas corpus 8 shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

No bill of attainder 4 or ex-post-facto law 5 shall be passed. 

No capitation or other direct tax shall be laid, unless in propor- 
tion to the census or enumeration hereinbefore directed to be taken. 

1 The District of Columbia. 

2 This refers to the foreign slave trade. " Persons " means " slaves." In 1808 
Congress prohibited the importation of slaves. This clause is, of course, no 
longer in force. 

3 An official document requiring an accused person who is in prison awaiting 
trial to be brought into court to inquire whether he may be legally held. 

4 A special legislative act by which a person may be condemned to death or 
to outlawry or banishment without the opportunity of defending himself which 
he would have in a court of law. 

5 A law relating to the punishment of acts committed before the law was 
passed. 



xviii CIVIL GOVERNMENT 

No tax or duty shall be laid on articles exported from any- 
State. 

No preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another ; nor 
shall vessels bound to, or from, one State, be obliged to enter, 
clear, or pay duties in another. 

No money shall be drawn from the treasury but in conse- 
quence of appropriations made by law ; and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

No title of nobility shall be granted by the United States: 
And no person holding any office of profit or trust under them, 
shall, without the consent of the Congress, accept of any present, 
emolument, office, or title, of any kind whatever, from any king, 
prince, or foreign state. 



Section io. — Powers forbidden to the States 

No State shall enter into any treaty, alliance, or confederation ; 

grant letters of marque and reprisal ; coin money ; 

emit bills of credit ; make anything but gold and 
Prohibitions . '. { ° . s 

on the States silver coin a tender in payment of debts ; pass any 

bill of attainder, ex-post-facto law, or law impairing 

the obligation of contracts, or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection 
Conditional j aws an( j $\e net produce of all duties and imposts, 

Prohibitions ,.,i o A ^ • i u t_ 

on the States * alc * "V any State on imports or exports, shall be 
for the use of the treasury of the United States ; 
and all such laws shall be subject to the revision and control 
of the Congress. 

No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops, or ships-of-war, in time of peace, enter 
into any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, or in 
such imminent danger as will not admit of delay. 



Absolute 



CONSTITUTION OF THE UNITED STATES xix 

ARTICLE II. — EXECUTIVE DEPARTMENT 

Section i. — President and Vice-President 

The executive power shall be vested in a President of the 

United States of America. He shall hold his office 

during the term of four years, and, together with 

the Vice-President, chosen for the same term, be elected, as 

follows : 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors, equal to the whole num- 
ber of senators and representatives to which the 
State may be entitled in the Congress : but no 
senator or representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

[ x The electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and cer- 
Proceedings of tify and transm i t sea led to the seat of the govern- 
or Congress ment of the United States, directed to the president 
of the Senate. The president of the Senate shall, 
in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted. 
The person having the greatest number of votes shall be the 
President, if such number be a majority of the whole number of 
electors appointed ; and if there be more than one who have such 
majority, and have an equal number of votes, then the House of 
Representatives shall immediately choose by ballot one of them 
for President ; and if no person have a majority, then from the 
five highest on the list the said house shall, in like manner, choose 
the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one 
vote ; a quorum for this purpose shall consist of a member or 
members from two-thirds of the States, and a majority of all the 
States shall be necessary to a choice. In every case, after the 

1 This paragraph in brackets has been superseded by the Twelfth Amendment. 



xx CIVIL GOVERNMENT 

choice of the President, the person having the greatest number 
of votes of the electors shall be the Vice-President. But if there 
should remain two or more who have equal votes, the Senate shall 
choose from them by ballot the Vice-President.] 

The Congress may determine the time of choosing the electors, 
Time of- an d the day on which they shall give their votes ; 

choosing which day shall be the same throughout the United 

Electors. States. 1 

No person except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this 
Qualifications Constitution shall be eligible to the office of Presi- 
of President. . » to ,,..,, 

dent ; neither shall any person be eligible to that 

office who shall not have attained to the age of thirty-five years, 
and been fourteen years resident within the United States. 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the same shall devolve on the 
Vice-President, and the Congress may by law pro- 
vide for the case of removal, death, resignation, or inability, both 
of the President and Vice-President, declaring what officer shall 
then act as President ; and such officer shall act accordingly until 
the disability be removed, or a President shall be elected. 

The President shall, at stated times, receive for his services 

a compensation 2 which shall neither be increased nor diminished 

during the period for which he shall have been 

elected, and he shall not receive within that period 

any other emolument from the United States, or any of them. 

Before he enter on the execution of his office, he shall take the 

following oath or affirmation : — "I do solemnly swear (or affirm) 

that I will faithfully execute the office of President 

of the United States, and will, to the best of my 

ability, preserve, protect, and defend the Constitution of the 

United States." 

1 The electors are chosen on the Tuesday next after the first Monday in 
November, preceding the expiration of a presidential term. They vote (by Act 
of Congress of Feb. 3, 1887) on the second Monday in January following 
for President and Vice-President. The votes are counted, and declared in 
Congress on the second Wednesday of the following February. 

2 The President now receives fifty thousand dollars a year ; the Vice-President, 
eight thousand dollars. 



CONSTITUTION OF THE UNITED STATES xxi 



Section 2. — Powers of the President 

The President shall be commander-in-chief of the army and 

navy of the United States, and of the militia of the several States, 

when called into the actual service of the United 
Military „ , .,....., 

Powers. States ; he may require the opinion, in writing, of 

the principal officer in each of the executive depart- 
Reprieves and ments, upon any subject relating to the duties of 

their respective offices ; and he shall have power to 
grant reprieves and pardons for offenses against the United 
States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two-thirds of the senators 

present concur ; and he shall nominate, and by and 

with the advice and consent of the Senate shall 
appoint ambassadors, other public ministers and consuls, judges 
of the Supreme Court, and all other officers of the United States, 

whose appointments are not herein otherwise pro- 

ppom - vided for, and which shall be established by law : 

ments. ' J 

but the Congress may by law vest the appointment 

of such inferior officers, as they think proper, in the President 

alone, in the courts of law, or in the heads of departments. 

The President shall have power to fill up all vacancies that 

may happen during the recess of the Senate, by 

. granting commissions which shall expire at the end 

of their next session. 



Section 3. — Duties of the President 

He shall from time to time give to the Congress information 1 
of the state of the Union, and recommend to their consideration 

such measures as he shall judge necessary and 
Message. ,. ,« . j- • 

expedient ; he may, on extraordinary occasions, con- 
vene both houses, or either of them, and in case of disagreement 

1 The President gives this information by sending a message to Congress at 
the opening of each session. Washington and John Adams read their messages 
in person to Congress. Jefferson, however, sent a written message to Congress 
by his private secretary, and this custom has since been followed. 



xxii CIVIL GOVERNMENT 

between them with respect to the time of adjournment, he 

may adjourn them to such time as he shall think 

onvene proper ; he shall receive ambassadors and other 

Congress. r r 

public ministers ; he shall take care that the laws 

be faithfully executed, and shall commission all the officers of 

the United States. 

Section 4. — Impeachment 

The President, Vice-President, and all civil officers of the 
United States, shall be removed from office on 
Officers* ° impeachment for, and conviction of, treason, brib- 

ery, or other high crimes and misdemeanors. 



ARTICLE III. — JUDICIAL DEPARTMENT 
Section i . — United States Courts 

The judicial power of the United States shall be vested in one 

Supreme Court, and in such inferior courts as the Congress may 

from time to time ordain and establish. The 

established. judges, both of the Supreme and inferior courts, 

shall hold their offices during good behavior, and 
Judges 

shall, at stated times, receive for their services a 

compensation * which shall not be diminished during their con- 
tinuance in office. 

Section 2. — Jurisdiction of United States Courts 

The judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under 
Federal t j ie j r au thority ; — to all cases affecting ambassa- 

General dors, other public ministers, and consuls ; — to all 

cases of admiralty and maritime jurisdiction ; — to 
controversies to which the United States shall be a party; — 
to controversies between two or more States; — between a State 
and citizens of another State; 2 — between citizens of different 

1 The chief justice of the Supreme Court receives ten thousand five hundred 
dollars a year; the associate justices, ten thousand dollars. 

2 But compare the Eleventh Amendment. 



CONSTITUTION OF THE UNITED STATES xxiii 

States ; — between citizens of the same State claiming lands under 
grants of different States, and between a State, or the citizens 
thereof, and foreign states, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a State shall be party, the Supreme 

Court shall have original jurisdiction. In all other 
Supreme cases before mentioned, the Supreme Court shall 

have appellate jurisdiction, both as to law and fact, 
with such exceptions and under such regulations as the Congress 
shall make. 

The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the State where the 

said crimes shall have been committed ; but when 

not committed within any State, the trial shall be at 
such place or places as the Congress may by law have directed. 

Section 3. — Treason 

Treason against the United States shall consist only in levying 
Treason war against them, or in adhering to their enemies, 

defined. giving them aid and comfort. 

No person shall be convicted of treason unless on the testi- 
mony of two witnesses to the same overt act, or on confession in 
open court. 

The Congress shall have power to declare the punishment of 

treason, but no attainder of treason shall work 
Punishment. . £ , . , £ £ -,. L , . 

corruption of blood, or forfeiture, except during 

the life of the person attainted. 



ARTICLE IV. — RELATIONS OF THE STATES TO 
EACH OTHER 

Section i. — Official Acts 

Full faith and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State. And 
the Congress may by general laws, prescribe the manner in which 
such acts, records, and proceedings shall be proved, and the effect 
thereof. 



xxiv CIVIL GOVERNMENT 



Section 2. — Privileges of Citizens 

The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in 

ugi lves another State, shall, on demand of the executive 

from Justice. 

authority of the State from which he fled, be deliv- 
ered up, to be removed to the State having jurisdiction of the crime. 
No person 1 held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence 
gi ive Q £ an y j aw or regulation therein, be discharged from 

such service or labor, but shall be delivered up on 
claim of the party to whom such service or labor may be due. 



Section 3. — New States and Territories 

New States may be admitted by the Congress into this Union ; 

but no new State shall be formed or erected within the jurisdic- 
tion of any other State ; nor any State be formed 

Ad ^J s J 10n by the junction of two or more States, or parts 

of States, without the consent of the Legislatures 

of the States concerned as well as of the Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the terri- 

Terntory tor y or ot h er property belonging to the United 

United°States° States; and nothing in this Constitution shall be 
so construed as to prejudice any claims of the 

United States, or of any particular State. 



Section 4. — Protection of the States 

The United States shall guarantee to every State in this Union 
a republican form of government, and shall protect each of them 
against invasion, and on application of the Legislature, or of the 
Executive (when the Legislature cannot be convened) against 
domestic violence. 

1 " Person " here includes slave. This was the basis of the Fugitive Slave 
Law. It is now superseded by the Thirteenth Amendment. 



CONSTITUTION OF THE UNITED STATES xxv 



ARTICLE V. — AMENDMENTS 

The Congress, whenever two-thirds of both houses shall deem 

it necessary, shall propose amendments to this Constitution, or, 

on the application of the Legislatures of two-thirds 

ow a of the several States, shall call a convention for 

proposed. 

proposing amendments, which, in either case, shall 

be valid to all intents and purposes, as part of this Constitution, 

when ratified by the Legislatures of three-fourths of the several 

States, or by conventions in three-fourths thereof, as the one or 

the other mode of ratification may be proposed by 

°™ , the Congress : provided that no amendment which 

ratified. , , . , , , . , 

may be made prior to the year one thousand eight 

hundred and eight shall in any manner affect the first and fourth 

clauses in the ninth section of the first article ; and that no State, 

without its consent, shall be deprived of its equal suffrage in the 

Senate. 



ARTICLE VI. — GENERAL PROVISIONS 

All debts contracted, and engagements entered into, before 
the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, 

as under the confederation. 

This Constitution, and the laws of the United States which 

shall be made in pursuance thereof ; and all treaties made, or 
which shall be made, under the authority of the 

Constitution* United States, shall be the supreme law of the 
land ; and the judges in every State shall be bound 

thereby, anything in the Constitution or laws of any State to the 

contrary notwithstanding. 

The senators and representatives before mentioned, and the 

members of the several State Legislatures, and all executive and 

Official Oath judicial officers, both of the United States and of 
the several States, shall be bound by oath or affirma- 

Religious Test. ^ Qn tQ SQ pp 0rt ^g Constitution ; but no religious 

test shall ever be required as a qualification to any office or 
public trust under the United States. 



xxvi CIVIL GOVERNMENT 

ARTICLE VII. — RATIFICATION OF THE 
CONSTITUTION 

The ratification of the Conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. 

Done in convention, by the unanimous consent of the 
States present, the seventeenth day of September, in 
the year of our Lord one thousand seven hundred and 
eighty-seven, and of the independence of the United 
States of America the twelfth. 

In witness whereof, we have hereunto subscribed our 
names. 1 

GEORGE WASHINGTON, 

President, and Deputy from Virginia. 



NEW HAMPSHIRE 

John Langdon 
Nicholas Gilman 

MASSACHUSETTS 

Nathaniel Gorham 
Rufus King 

CONNECTICUT 

William Samuel Johnson 



PENNSYLVANIA 

Benjamin Franklin 
Thomas Mifflin 
Robert Morris 
George Clymer 
Thomas Fitzsimons 
Jared Ingersoll 
James Wilson 
Gouverneur Morris 



Roger Sherman 

NEW YORK 
Alexander Hamilton 

NEW JERSEY 

William Livingston 
David Brearley 
William Paterson 
Jonathan Dayton 



DELAWARE 
George Read 
Gunning Bedford, Jr. 
John Dickinson 
Richard Bassett 
Jacob Broom 

MARYLAND 
James M'Henry 
Daniel of St. Thomas 

Jenifer 
Daniel Carroll 



VIRGINIA 

John Blair 

James Madison, Jr. 



NORTH CAROLINA 

William Blount 
Richard Dobbs Spaight 
Hugh Williamson 



SOUTH CAROLINA 

John Rutledge 
Charles C. Pinckney 
Charles Pinckney 
Pierce Butler 



GEORGIA 

William Few 
Abraham Baldwin 



A ttest 



WILLIAM JACKSON, Secretary. 



1 There were sixty-five delegates chosen to the convention : ten did not 
attend; sixteen declined or failed to sign; thirty-nine signed. Rhode Island 
sent no delegates. 



CONSTITUTION OF THE UNITED STATES xxvii 



AMENDMENTS 

Article I. 1 — Congress shall make no law respecting an 
Religion establishment of religion, or prohibiting the free 

Speech, Press, exercise thereof ; or abridging the freedom of 
Assembly, speech, or of the press ; or the right of the people 

Petition. peaceably to assemble, and to petition the govern- 

ment for redress of grievances. 

Article II. — A well-regulated militia being necessary to the 
security of a free State the right of the people to 
keep and bear arms shall not be infringed. 
Article III. — No soldier shall, in time of peace, be quar- 
tered in any house, without the consent of the 
Soldiers. \ " . c , . , , 

owner ; nor in time of war but in a manner to be 

prescribed by law. 

Article IV. — The right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants 

search 011 * 1 & s ^ ia ^ ^ ssue ' Dut u P on probable cause, supported by 
oath or affirmation, and particularly describing the 

place to be searched, and the persons or things to be seized. 
Article V. — No person shall be held to answer for a capital, 

or otherwise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the 

Prosecut'ons * anc ^ or nava ^ f° rces > or i n the militia, when in 
actual service in time of war and public danger ; 
nor shall any person be subject for the same offense to be twice 
put in jeopardy of life or limb ; nor shall be compelled in any 
criminal case to be a witness against himself, nor to be deprived 
of life, liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just compensation. 
Article VI. — In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an impartial jury 

1 These amendments were proposed by Congress and ratified by the Legis- 
latures of the several States, pursuant to the fifth article of the Constitution. 
The first ten were offered in 1789 and adopted before the close of 1791. They 
were for the most part the work of Madison. They are frequently called the 
Bill of Rights, as their purpose is to guard more efficiently the rights of the 
people and of the states. 



xxviii CIVIL GOVERNMENT 

of the State and district wherein the crime shall have been com- 
mitted, which district shall have been previously ascertained by 
law, and to be informed of the nature and cause of the accusa- 
tion ; to be confronted with the witnesses against him ; to have 
compulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defense. 

Article VII. — In suits at common law, where the value in 

controversy shall exceed twenty dollars, the right 

Suits at Q £ tr - a j k • shall k e preserved, and no fact 

Common , . . , . , „ , , . .. , . 

Law tried by a jury shall be otherwise reexamined in 

any court of the United States than according to 
the rules of common law. 

Article VIII. — Excessive bail shall not be required, nor 
Bail, excessive fines imposed, nor cruel and unusual 

Punishments. punishments inflicted. 

Article IX. — The enumeration in the Constitution of cer- 
tain rights shall not be construed to deny or dis- 

Reserved parage others retained by the people. 

Rights and F . s _. J , , 

Powers. Article X. — The powers not delegated to the 

United States by the Constitution, nor prohibited 

by it to the States, are reserved to the States respectively, or to 

the people. 

Article XI. 1 — The judicial power of the United States shall 
Judicial not De construed to extend to any suit in law or 

Power equity, commenced or prosecuted against any of 

granted. t h e United States by citizens of another State, 

or by citizens or subjects of any foreign state. 

Article XII. 2 — The electors shall meet in their respective 
States, and vote by ballot for President and Vice-President, one 
of whom, at least, shall not be an inhabitant of the same State 
with themselves ; they shall name in their ballots the person voted 
for as President, and in distinct ballots the person voted for as 
Vice-President ; and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice-Presi- 
dent, and of the number of votes for each, which list they shall 
sign and certify, and transmit sealed to the seat of the government 
of the United States, directed to the president of the Senate; — 

1 Proposed in 1794; adopted in 1798. 

2 Adopted in 1804. 



CONSTITUTION OF THE UNITED STATES xxix 

the president of the Senate shall, in the presence of the Senate 
and House of Representatives, open all the certificates, and the 
votes shall then be counted ; — the person having the greatest 

number of votes for President, shall be the Presi- 
Method of dent, if such number be a majority of the whole 

President and num t> er of electors appointed ; and if no person 
Vice-President, have such majority, then from the persons having 

the highest numbers not exceeding three on the list 
of those voted for as President, the House of Representatives 
shall choose immediately, by ballot, the President. But in choos- 
ing the President, the votes shall be taken by States, the repre- 
sentation from each State having one vote ; a quorum for this 
purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary 
to a choice. And if the House of Representatives shall not 
choose a President whenever the right of choice shall devolve 
upon them, before the fourth day of March next following, then 
the Vice-President shall act as President, as in the case of the 
death or other constitutional disability of the President. The 
person having the greatest number of votes as Vice-President, 
shall be the Vice-President, if such number be a majority of the 
whole number of electors appointed; and if no person have a 
majority, then from the two highest numbers on the list, the 
Senate shall choose the Vice-President ; a quorum for the pur- 
pose shall consist of two-thirds of the whole number of senators, 
and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the orifice of President 
shall be eligible to that of Vice-President of the United States. 
Article XIII. 1 — Section i. Neither slavery nor involuntary 

servitude, except as a punishment for crime, whereof 
bolished ^ e P artv sna ^ nave been duly convicted, shall 

exist within the United States, or any place sub- 
ject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article 
by appropriate legislation. 

Article XIV. 2 — Section 1. All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, are 

1 Adopted in 1865. 

2 Adopted in 1868. 



xxx CIVIL GOVERNMENT 

citizens of the United States and of the State wherein they 

reside. No State shall make or enforce any law which shall 

abridge the privileges or immunities of citizens of 

Citizens ^^ the United States 5 nor sha11 an y State deprive any 
person of life, liberty, or property, without due 
process of law, nor deny to any person within its jurisdiction 
the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of electors for President and Vice-President of the United 
States, representatives in Congress, the executive or judicial offi- 
cers of a State, or the members of the Legislature thereof, is 
denied to any of the male inhabitants of such State, being 
twenty-one years of age, and citizens of the United States, or 
in any way abridged, except for participation in rebellion or other 
crime, the basis of representation therein shall be reduced in the 
proportion which the number of such male citizens shall bear to 
the whole number of male citizens twenty-one years of age in 
such State. 

Section 3. No person shall be a senator or representative in 
Congress, or elector of President or Vice-President, or hold any 
office, civil or military, under the United States, or under any 
State, who having previously taken an oath as a member of Con- 
gress, or as an officer of the United States, or as a member of 
any State Legislature, or as an executive or judicial officer of any 
State, to support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may, by a 
vote of two-thirds of each house, remove such disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pen- 
sions and bounties for services in suppressing insurrection or 
rebellion, shall not be questioned. - But neither the United States 
nor any State shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United States, or 
any claim for the loss or emancipation of any slave ; but all such 
debts, obligations, and claims shall be held illegal and void. 



CONSTITUTION OF THE UNITED STATES xxxi 

Section 5. Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 

Article XV. 1 — Section 1. The rights of citizens of the 
Negroes United States to vote shall not be denied or 

made Voters. abridged by the United States, or by any State, 
on account of race, color, or previous condition of servitude. 

Section 2. Congress shall have power to enforce this article by 
appropriate legislation. 

1 Adopted in 1870. 



INDEX 



Absolute Monarchy, 30. 

Accessories, 363. 

Administrator, 359. 

Admiralty jurisdiction, 221, 222. 

Admission of states to union, 231- 
232. 

Agency, 354. 

Agriculture, department of, 214. 

Albany congress, 57-59. 

Aldermen, board of, 296. 

Alien, denned, 139. 

Alien and sedition acts, 315. 

Amendment, of articles of confed- 
eration, 69, 70; of federal consti- 
tution, 250-251; of state constitu- 
tions, 267-268. 

Amendments, XlVth, 139, 249, 252- 
253; Xllth, 185; Xlth, 223; 1st 
-Xth, 243-248; XHIth, 252; class- 
ified, 251-252; XVth, 253-254. 

Anarchists, defined, 14; excluded 
from U. S., 129. 

Anarchy, impracticability of, 14-15. 

Annapolis convention, 75-76. 

Antifederalists, views of, 85-86; his- 
tory of, 309-310. 

Anti-trust law, federal, 131. 

Appointing power of president, 195- 
196; of senate, 150-151. 

Apportionment and collection of 
taxes, 282-283. 

Appurtenances, 351-352. 

Arbitration, international, 333. 

Aristocracy, 23, 26. 

Aristotle, his classification of gov- 
ernments, 23-24. 

Armies of Europe, 135. 

Army, U. S., regular, 134-135- 

Articles of confederation, drafting 



and adoption of, 65-66; ratifica- 
tion of, 66-67; provisions of, 67- 
69; defects of, 69-70; state of gov- 
ernment under, 72-74; text of, i-x. 

Aryan peoples, 11. 

Assembly, right of peaceable, 245. 

Assessment of taxes, 282. 

Assignment by tenant, 351. 

Attainder, bills of, 154. 

Attorney-general, federal, 204, 208- 
209. 

Australian system, 271. 

Authority, conflicts of between state 
and nation, 240-241. 

Bail, excessive, 247. 

Balance of power, 334. 

Bank, U. S., question of, 314. 

Bankruptcy laws, federal, 131-132. 

Belligerents, 335. 

Bigamy, 362. 

Bill of attainder, 154. 

Bill of exchange, 355, 356. 

Bill of rights, federal, 243-244. 

Bills of credit, 236. 

Bills, legislative, revenue bills in the 

house of representatives, 147-148; 

stages of, 161-162; reporting of, 

166-167; number of in congress, 

I74-I75- 
Blockade, 33 8 ~339- 
Bond, government, nature of, 124. 
Borrowing, methods of, 124. 
Bounties, land, 21 1-2 12. 
Bryce, quoted, 95-96, 102-103, I0 7~ 

198. 
Bureau, of education, 212; pension, 

212; patent, 213; of Indian affairs, 

213. 



XXXIV 



INDEX 



Cabinet, character of, 202-204; 
nominations for confirmed, 260; 
relation to president and congress, 
260-261. 

Canvassing votes, 271-272. ■ 

Capital, national, 142. 

Captures, rules concerning, 138, 337- 
338. . 

Career in congress, 176. 

Caucus committees, 174. 

Caucus, congressional, 173-174, 318. 

Centralization in national govern- 
ment, 36-37. 

Challenging a vote, 271. 

Chamber of house of representa- 
tives, 158-159. 

Charter, city, 295. 

Charter government, 40-41. 

Charters, colonial, 41. 

Chattel mortgage, 353. 

Check, 355, 356. 

Chinese denied naturalization, 140. 

Chinese exclusion, 129. 

Circuit court of appeals, 226-227. 

Circuit courts, federal, 226; state, 
279-280. 

Cities, growth of, 293. 

Citizen, defined, 139. 

City, character of, 294-295. 

Civics, defined, 7, 20, 21; import- 
ance of, 21. 

Civil law, defined, 345. 

Civil rights, 17-18. 

Civil service commission, 217. 

Civil suit, procedure, 363-364. 

Claims, court of, 227. 

Clan, formation of, 12. 

Clearance, 128. 

Closure of debate in congress, 169— 
170. 

Codicil, 350. 

Coinage, power of, 125. 

College electoral, failure of, 187-189. 

Colonial governments, charter gov- 
ernments, 40-41; proprietary gov- 
ernments, 41—42; royal province, 
42-43; similarity of, 43. 

Colonies, unifying and disintegrat- 
ing forces in, 54-56. 

Combatants and non-combatants, 
335-336. 



Commerce, foreign, control of, 128- 
129; inter-state, control of, 129- 
130; inter-state commerce com- 
mission, 130-13 1. 

Commerce and labor, department of, 
215-216. 

Commission merchant, 354. 

Commissioner of railroads, 213. 

Committee system, 163-166, 170- 
171, 261. 

Committees' of correspondence, 60- 
61; legislative, 164-165; caucus, 
174; party, 321-322. 

Common law, defined, 345. 

Complaint in suit at law, 363. 

Compromises of constitution, 82-84. 

Compulsory education, 285. 

Concurrent powers, 239-240. 

Confederacy, New England, 56-57. 

Confederation, articles of, see arti- 
cles of confederation. 

Confederation, defined, 28. 

Congress, Albany, 57-59. 

Congress, first continental, 61-62; 
second continental, 63-64. 

Congress, stamp act, 59-60. 

Congress, U. S., compared with par- 
liament, 91; basis of representa- 
tion, 97; apportionment of mem- 
bers, 97-99; vacancies in, 105; ses- 
sions of, 1 1 4-1 15; quorum in, 115; 
procedure in, 115-116; adjourn- 
ment, 116; compared with congress 
of confederation, 11 6-1 17; taxing 
power of, 119; borrowing power 
of, 123-124; power of coinage, 
125; power to regulate commerce, 
127; war powers, 132-136; power 
to establish courts, 146; special 
powers of houses, 147— 151; limi- 
tations upon, 152-155; methods of 
voting in, 168-169; closure of de- 
bate in, 169-170; contrast between 
houses, 175-176; career in, 176. 
(See also members of congress.) 

Congressional caucus, 173-174, 318. 

Constituent functions of govern- 
ment, 18-19. 

Constitution, defined, 35. 

Constitution, U. S., compromises of, 
82-84; ratification of, 84-86; gov- 



INDEX 



XXXV 



eminent established under, 86; 
origin of, 88; origin of special pro- 
visions, 88-89; nature of govern- 
ment under, 92-93; Bryce on, 95- 
96; stability of, 95-96; elastic 
clause of, 146-147; ratification pro- 
vided for, 250; amendment of, 
250-251; text of, xi-xxxi. 

Constitution unwritten, 34-35; 255- 
256. 

Constitution written, 34. 

Constitutional convention, origin of, 
75; character of, 76; work of, 79- 
80; difficulties of, 80-81; plans 
submitted to, Si-82. 

Constitutional government, origin of, 

33-34- 

Constitution-making, methods of in 
states, 266-267. 

Constitutions, rigid and flexible, 35. 

Constitutions, state, 265-266; amend- 
ment of, 267-268; contents of, 
268-269. 

Consular service, 331-332. 

Continental congress, first, 61-62; 
second, 63-64. 

Contraband of war, 339-340. 

Contract, defined, 346; conditions of, 
347-348; breach of, 348. 

Contract theory of government, 10. 

Contracts, classified, 346-347; law 
impairing obligation of, 79, 236. 

Convention, Annapolis, 75-76. 

Convention, constitutional, see con- 
stitutional convention. 

Convention party, see party conven- 
tion. 

Copyrights and patents, 141-142. 

Corporations, bureau of, 216. 

Corruption of blood, 224. 

Counterfeiting, 126-127. 

County, origin of, 48-49; adopted in 
America, 49-50; in Virginia, 50; 
in New England, 50-51, 289; 
county system of local govern- 
ment, 289-290; in mixed system, 
291. 

Court, supreme, 225-226; circuit, of 
appeals, 226; of claims, 227. 

Courts, federal, enumerated, 220; 
jurisdiction of, 221-222; transfer 



of cases to, 223-224; circuit, 226; 
district, 227; procedure of, 228. 

Courts-martial, 137. 

Courts, state, 279-281. 

Crimes, punishment of, 361; against 
persons, 361-362; against prop- 
erty, 362; against public morals, 
362. 

Criminal law defined, 345. 

Criminal suit, procedure, 364-365. 

Criminals, fugitive, 235. 

Crops, right of tenant to, 351. 

Customs (duties), 121— 122. 



Debate, closure of in congress, 169- 
170. 

Debt, public, constitutional provi- 
sions concerning, 249-250; Hamil- 
ton on, 313. 

Decentralization, advantages and 
disadvantages of, 37. 

Declaration of independence, 65, 66. 

Deeds and mortgages, 348-349. 

Defendant, 363. 

Delivery of property, 350. 

Democracy, pure, 31; representa- 
tive, 31. 

Democratic - republicans, develop- 
ment of, 310-311; policies of, 311- 
312; rise of, 3i4-3!5- 

Democrats, rise of, 316. 

Departments, executive, see execu- 
tive departments. 

Departments of government, 93-94. 

Diplomatic agents, 330-331. 

District attorneys, federal, 227-228. 

District courts, federal, 227. 

District of Columbia, government of, 
142-143. 

Division of powers between state and 
nation, 238-239. 

Divorce, 361. 

Doctrine of national sovereignty, 
238. 

Domain, eminent, defined, 20. 

Domestic violence, protection against 
guaranteed, 233. 

Dower, right of, 349. 

Drawer and drawee, 355. 

Duties (customs), 121-122. 



XXXVI 



INDEX 



Education, land grants in aid of, 

211-212; bureau of, 212; state, 

283-285; local administration of, 

285; compulsory, 285. 

Elastic clause of the constitution, 

146-147. 
Election, by districts, 103; at large, 
103; expenses, 105; of senators, 
110-112; presidential, by house, 
of representatives, 149; presiden- 
tial, method of, 182-184; presi- 
dential, disputed, of 1876, 185- 
186. 

Elections in states, 270-271. 

Electoral college, failure of, 187-189. 

Electoral commission of 1876, 186. 

Electors, presidential, choice of, 186- 
187; discretionary power of, 187- 
188, 257-258. 

Eleventh amendment, 223. 

Embargo, 333~334- 

Embezzlement, 362. 

Eminent domain, defined, 20. 

Entry of vessels, 128. 

Era of good feeling, 315-316. 

Estates, in real and personal prop- 
erty, 346. 

Eviction, 351. 

Ex post facto laws, 154. 

Excises, defined, 122-123. 

Executive, federal; see president, 
cabinet, executive departments. 

Executive, state, 275-276; officers, 
278-279. 

Executive boards and commissions, 
216-217. 

Executive department, municipal, 
296-298. 

Executive departments, organization 
of, 204; enumerated, 204-205; de- 
partment of state, 205-206; treas- 
ury department, 206-207; war de- 
partment, 207-208; department of 
justice, 208-209; P ost office de- 
partment, 209; navy, 209-210; in- 
terior, 210-213; agriculture, 214; 
commerce and labor, 215-216. 

Executive powers of senate, 149-15 1. 

Executor, 350. 

Expansion, national, 264. 

Extradition, 235. 



Family, patriarchal, 11-12; matriar- 
chal, 12. 

Federal courts, see courts, federal. 

Federal judges, 220-221. 

Federal judiciary, need of, 219. 

Federal state, 28-29. 

Federalist, the, 86. 

Federalists, views of, 85 ; policies of, 
3 10-31 l; early supremacy of, 312. 

First continental congress, 61-62. 

Filibustering, 167-168, 169. 

Finances, state, 281; city, 301-302. 

Force in contract, 347. 

Force theory of government, 10-11. 

Foreclosure, 349. 

Foreign commerce, control of, 128- 
129. 

Forged paper, 358. 

Fourteenth amendment, 139, 249, 

252-253- 

Franchises, 303-304. 

Franklin, plan of at Albany con- 
gress, 58-59; plan of for confeder- 
ation, 65; in constitutional con- 
vention, 78-79. 

Free trade, policy of, 122. 

Fugitive criminals, 235. 

Functions of government, 18-19. 

Fundamental orders of Connecticut, 
34- 



Geological survey, 213. 

Gerrymandering, 103-104. 

Gift, law of, 349-35°' 35 8 "3S9- 

Government, contract theory of, 10; 
force theory, 10-11; kinship the- 
ory, 11-12; restraints of, 12-13; 
defined, 13-14; necessity for, 15; 
object of, 15-16; functions of, 18- 
19; Aristotle's classification of, 
23-24; tribal, 25; constitutional, 
origin of, 33-34; best form of, 35- 
36; local colonial, 45-52; local, 
mixed system, 52, 290-291; depart- 
ments of, 93-94; republican, 
guaranteed, 232-233; federal, in- 
herent powers of, 256; party, 261- 
262; state, importance of, 285-286; 
local, types of, 288; municipal, 
see municipal government. 



INDEX 



XXXVll 



Governments, colonial, see colonial 
government. 

Governments, state, see state gov- 
ernments. 

Governor, of state, 276-277; col- 
leagues of, 277-278. 

Grand jury, 246. 

Grand larceny, 362. 

Guarantees to states, 232-234. 

Guardian, 347. 

Habeas Corpus, 153-154. 
Hamilton, in constitutional conven- 
tion, 77-78; financial measures of, 

3 I 3"3 I 4- 

Hartford convention, 315. 

Homicide, 362. 

House of representatives, exclusion 
of members, 101; organization of, 
105-106; choice of officers, 107; 
revenue bills in, 147-148; power 
of impeachment, 148-149; presi- 
dential election in, 149; chamber 

of, 158-159- 
Husband and wife, legal relations of, 
360-361. 

Immigration, regulation of, 129. 
Impeachment, power of, 148-149; 

procedure in, 151-152. 
Indian bureau, 213. 
Indians, commerce with, 127; rela- 
tions to U. S., 213. 
Indictment, 246. 
Indirect taxes, 1 21-122. 
Individual rights, how secured, 16; 

subject to change, 17. 
Indorsement, 357-358. 
Intercourse, 330. 
Interior, department of, 210-213. 
Internal revenue, 122-123. 
International arbitration, 333. 
International law. definition and 

origin. 326-327; compared with 

municipal, 327-328. 
Interstate commerce, control of, 1 29- 

130; interstate commerce act and 

commission, 130— 131. 
Intervention, 340-341. 
Intestacy, 359. 



Invasion, protection against guaran- 
teed, 233. 

Judges, federal, 220-221. 

Judicial power of senate, 1 51-152. 

Judiciary, federal, need of, 219; de- 
fects of, 228-229; excellences of, 
229; see also courts, federal; state, 
279-281; municipal, 300. 

Jurisdiction, of federal courts, 221- 
222; of state courts, 279-280; ex- 
tent of a state's, 329-330. 

Jury, trial by, 246. 

Justice, department of, 208-209. 

Justice of peace, 279. 

Kinship theory of government, 11- 
12. 

Land, surveys, system of, 211; boun- 
ties, 2 1 1-2 1 2 ; grants to states, 211- 
212; grants to individuals, 212. 

Landlord and tenant, 350-351. 

Larceny, 362. 

Law, of nature, 10; municipal, 344; 
common, 345; statute, 345; civil, 
345; criminal, 345; international, 
see international law. 

Laws, naturalization, 139. 

Lease, 350. 

Legacy, 359. 

Legal tender acts, 124. 

Legislation, methods of, 160-161. 

Legislature, municipal, 298-300; 
U. S., see congress, U. S. 

Legislatures, state, 272-275. 

Letters of marque and reprisal, 137- 
.138. 

Libel and slander, 359. 

Lien, law of, 353-354. 

Lieutenant-governor, 274, 277-278. 

Library references, origin and na- 
ture of government, 21; forms of 
government, 37; colonial govern- 
ment, 52-53; attempts at union, 
64; articles of confederation, 70; 
formation and adoption of consti- 
tution, 87; origin and nature of 
constitution, 96; legislative de- 
partment, 117; legislative depart- 
ment, powers and limitations, 155; 



XXXV111 



INDEX 



legislative department, workings 
of, 177; executive department, 
199; executive department, presi- 
dent's assistants, 217'; judicial de- 
partment, 229; relation of states to 
nation, 241; bill of rights, 248; 
miscellaneous provisions, 254; un- 
written constitution, 262; state 
governments, 286; local govern- 
ment, 291; municipal government, 
307; American politics, 324; in- 
ternational law, 342; municipal 
law, 365. 

Limitations upon congress, 152-155; 
upon states, 237. 

Limited monarchy, 31. 

Local government, colonial, 45-51; 
mixed system of, 52, 290-291; 
types of, 288; town system of, 288- 
289; county system of, 289-290. 

Log-rolling, 167. 



Madison, in constitutional conven- 
tion, 77-78. 

Majority, defined, 272. 

Marque and reprisal, letters of, 137- 
138. 

Marshals, U. S., 227-228. 

Matriarchal family, 12. 

Mayor, 296-297. 

Mediation, 341-342. 

Members of congress, privileges of, 
1 1 2-1 13; disabilities of, 114; char- 
acter of, 159-160. 

Message, of president, 192; of gov- 
ernor, 277. 

Methods of voting in congress, 168- 
169. 

Military law, 137. 

Military property, 138. 

Militia, 135-136. 

Ministrant functions of government, 
18-19. 

Minor, 347. 

Mixed system of local government, 
52, 290-291. 

Monarchy, absolute, 30; limited, 31. 

Money, history of, 124-125; U.S., 
125-126. 

Mortgages, 349. 



Municipal functions, extension of, 
302-303. 

Municipal government, difficulties of, 
293-294; functions of, 295; organ- 
ization of, 295-296; recent changes 
in, 296; executive department, 296- 
297; administrative departments, 
297-298; legislature, 298-300; ju- 
diciary, 300; problems of, 300- 
304; finances, 301-302; fran- 
chises, 303-304. 

Municipal law, defined, 344. 

Municipal mismanagement, causes, 

3 5-307- 

Municipal ownership, 304-305. 
Municipal reform, 307. 
Murder, 362. 

National Capital, 142. 
National republicans, 316. 
National sovereignty, doctrine of, 

238. 
Nationality, growth of in U.S., 91-92. 
Naturalization, defined, 138; laws, 

139; how secured, 139; denied to 

Chinese, 140. 
Nature, law of, 10. 
Navigation laws, 128. 
Navy, U. S., 136-137; department of, 

209-210. 
Negotiable paper, law concerning, 

355-35^ use of, 356-357. 
Neutrals, rights and duties of, 339- 

34°. 
New England confederacy, 56-57. 
New England, county in, 50-51. 
Ninth amendment, 248. 
Notes, treasury, nature of, 124. 

Object of government, 15-16. 
Ochlocracy, 24. 
Oligarchy, 24. 
Ordinance of city, 299. 
Origin of state, theories concerning, 
9-1 1. 

Paper, negotiable, see negotiable 

paper. 
Pardon, by president, 191. 
Parent and child, legal relations, 

359"3 6 °- 



INDEX 



XXXIX 



Parish, origin of, 46; in England, 51; 
in Virginia, 51-52. 

Parliament, compared with con- 
gress, 91. 

Parties, origin of in U. S., 85-86; 
importance of, 309; history of 
since 1880, 317; work of, 317-318; 
necessity of, 323-324. 

Partnership, 354-355- 

Party committees, national, 321; 
State and local, 321-322. 

Party convention, history of, 318- 
319; organization and work, 319- 
320. 

Party conventions, national, 318- 
320; state and local, 320-321. 

Party government, 261-262. 

Party platform, 320. 

Patent bureau, 213. 

Patents and copyrights, 141-142. 

Patriarchal family, 10-11. 

Patriarchy, defined, 25. 

Payee, 355~35 6 - 

Pension bureau, 212. 

Peoples, Ayran, 11. 

Personal liberty and security guar- 
anteed, 244-247. 

Personal property, 346. 

Petit larceny, 362. 

Piracy, 132. 

Plaintiff, ^6^. 

Pleadings, 364. 

Plurality, defined, 272. 

Political rights, 17. 

Polygamy, 362. . 

Ports of entry, 128. 

Postal service of U. S., 140-141. 

Post office department, 209. 

Post roads, defined, 141. 

Powers, division of between state 
and nation, 238-239; reserved, 
239; concurrent, 239-240; classes 
of, 240. 

Presentment, 246. 

Presidency, views of convention con- 
cerning, 178-180; qualifications 
for, 180-181; defects of, 198. 

President, term of, 181-182: reeligi- 
bility of, 181-182, 258-259; salary 
of, 182; method of election, 182- 
184; powers of, enumerated, 190- 



191; legislative powers, 191-195; 
veto power, 192-194; treaty mak- 
ing power, 194-195; appointing 
power, 195-196; judicial power, 
191; life of, described, 196-197; 
power of removal, 259-260; cabi- 
net nominations confirmed, 260. 

Presidential election by house of 
representatives, 149. 

Presidential electors, choice of, 186- 
187; discretionary power of, 187- 
188; 257-258. 

Presidential succession, 189-190. 

Presidents, character of, 197-198. 

Press, freedom of, 245. 

Previous question, 169. 

Primary, importance of, 322-323. 

Principal and agent, 354. 

Private property, right of, 247. 

Privateering, 137, 338. 

Prize, 338. 

Probate courts, 280. 

Procedure, in impeachment cases, 
151-152; in civil suit, 363-364; in 
criminal suit, 364-365. 

Promissory note, 355~35 6 - 

Proprietary government, 41-42. 

Property, military, 138; private, 
right of, 247; liability to capture, 
337-338; real and personal, 346; 
stolen, 353; of wife, 360-361. 

Protection, policy of, defined, 122. 

Public acts, records, etc., of states, 
234- 

Public debt, constitutional provis- 
ions concerning, 249-250; Hamil- 
ton on, 313. 

Pure democracy, 31. 



Qualifications for presidency, 180- 
181. 

Questions on the text, origin and 
nature of government, 21-22; 
forms of government, 38-39; co- 
lonial government, 53; attempts at 
union, 64; articles of confedera- 
tion, 71; formation and adoption 
of constitution, 87; origin and na- 
ture of constitution, 96; legislative 
department, 11 7-1 18; powers of 



xl 



INDEX 



legislative department, 155-157; 
working of legislative department, 
177; executive department, 200- 
201; executive department, presi- 
dent's assistants, 217-218; judi- 
cial department, 229-230; rela- 
tions of state to nation, 241-242; 
bill of rights, 248; miscellaneous 
provisions, 254; unwritten consti- 
tution, 262-263; state govern- 
ments, 286-287; l° ca l govern- 
ment, 292; municipal government, 
308; American politics, 324-325; 
international law, 342-343; muni- 
cipal law, 365-368. 

Railroads, commissioner of, 213. 

Ratification of constitution, 84-86; 
provided for, 250. 

Real and personal property, estates 
in, 346. 

Recognition, by speaker, 172-173; of 
states, 328-329. 

Recording of deed, etc., 349. 

Reeligibility of president, 1 81-182, 
258-259. 

Reform, municipal, 307. 

Registration, of vessels, 128-129; 
of voters, 270. 

Religion, freedom of, 244-245. 

Removal, president's power of, 259- 
260. 

Representation, principle of, 32. 

Representative democracy, 31. 

Representatives, qualifications, 100- 
101; term, 101-103; election of, 
103; at-large, 104. 

Representatives, house of, see house 
of representatives. 

Reprisal, 334. 

Republican form of state govern- 
ments, 232-233. 

Republican party, rise of, 317. 

Requisition, 235. 

Reserved powers, 239. 

Restraints of government, 12-13. 

Retorsion, 334. 

Revenue bills in house of represen- 
tatives, 147-148. 

Revenue, internal, denned, 122-123. 

Revolution, when justified, 16. 



Riders on bills, 193. 

Right of private property, 247. 

Rights, individual, how secured, 16; 
subject to change, 17; classifica- 
tion of, 17; political, 17; civil, 17- 
18. 

Robbery, 362. 

Royal province, 42-43. 

Salary of president, 182. 

Sale, law of, 352-353. 

Schools, local administration of, 285. 
See also education. 

Search, right of, 247, 340. 

Secession, right of, 93. 

Second continental congress, 63-64. 

Senate, origin and character of, 107- 
109; officers of, 112; executive 
powers of, 149-15 1; executive ses- 
sion of, 150; judicial power of, 
151-152; chamber of, 158; con- 
firmation of cabinet nominations, 
260. 

Senators, election of, 110-112. 

Shire, English, 48-49. 

Siege, 337. 

Silver, free coinage of, 317. 

Slander and libel, 359. 

Slave trade, 83, 84. 

Slavery question, 316-317. 

Societies, primitive, 8. 

Society, defined, 7-8. 

Sovereignty, defined, 27, 328; doc- 
trine of national, 238. 

Speaker, power 0^.171-173. 

Speech, freedom of, 245. 

Stamp act congress, 59-60. 

State, defined, 8-9; origin of, 9-1 1; 
ancient city, 25; unitary, 27; fed- 
eral, 28-29. 

State (of U. S.), government, early, 
44-45; constitutions, origin of, 
265-266; constitutions, amend- 
ment of, 267-268; constitutions, 
contents of, 268-269; govern- 
ments, described, 269; elections, 
270-271; legislatures, 272-274; ex- 
ecutive officers of, 278-279; courts, 
279-281; finances, 281; taxes, 281- 
282; government, importance of, 
285-286. 



INDEX 



xli 



States, modern, classification of, 27- 

3°- 

States (of U. S.), formation of original 
thirteen, 43-44; relations to fed- 
eral government, 92-93; admission 
to union, 231-232; guarantees to, 
232-234; obligations toward each 
other, 234-235; limitations upon, 
235-238; diversities and uniformi- 
ties of, 264-265; suffrage in, 270. 

Statute law, defined, 345. 

Subpoena, 365. 

Succession, presidential, 189-190. 

Suffrage in nation, 99-100; in states, 
270. 

Summons, 363. 

Supreme court, state, 280. 

Supreme court, U. S. organization 
of, 225; jurisdiction of, 225; ses- 
sions of, 225-226. 

Survey of public lands, 211; geo- 
ogical, 213. 

Tariff, defined, 1 21-122. 

Taxes, classification of, 1 19-120; in- 
direct, 121-122; federal, collection 
of, 123; state, 281-282; state, as- 
sessment of, 282; state, apportion- 
ment and collection of 282-283. 

Taxing power, necessity for, 19-20; 
of congress, 119; restrictions upon, 
283. 

Tenant- rights and duties of, 350- 

35 1 - 

Term of president, 181-182. 

Territories, government of, 143-146. 

Territory, Northwest, 143, 210, 231; 
acquisition of by U. S., 2 10-21 1. 

Testator, 350. 

Theocracy, defined, 25-26. 

Theories concerning origin of state, 
9-1 1. 

Thirteenth amendment, 252. 

Title, transfer of, 353. 

Titles of nobility, 154-155. 

Tonnage, 237. 

Town, origin of, 45-46; in early New 
England, 47; system of local gov- 
ernment, 288-289. 



Township-county system of local 
government, 290-291. 

Transfer of cases from state to fed- 
eral courts, 223-224. 

Treason, 224-225. 

Treasury, department of, 206-207. 

Treasury notes, nature of, 124. 

Treaties, how made, 194-195; de- 
fined, 33 2 ~333- 

Tribal government, 25. 

Tribe, formation of, 12. 

Truce, 33^~337- 

Trusts, defined, 131; regulation of, 

J3 1 - 
Twelfth amendment, 185. 

Union, relation to states, 92-93. 

Unitary state, 27. 

United colonies of New England, 56- 

57- 
United States bank, question of, 314. 
Unwritten constitution. 34-35, 255- 

256. 

Vacancies in congress, 105. 

Verdict, 364. 

Veto, of president, 192-194; of gov- 
ernor, 277. 

Vice-president, 198-199. 

Village government of, 300. 

Virginia, county in, 50. 

Votes, canvassing of, 271-272. 

Voting, methods of in congress, 168- 
169; Australian system, 271; ille- 
gal, 271. 

War, declaration of, 133-134; de- 
fined, 334; just causes of, 334; 
effect of on subjects, 335. 

War department, 207-208. 

War powers of congress, 132—136. 

Warfare, forbidden methods of, 336; 
with barbarous nations, 337. 

Warrant, 363. 

Washington, in constitutional con- 
vention, 77. 

Weights and measures, 132. 

Whig party, 316. 

Will, 350, 359. 



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